BNUMBER: B-260778.2; B-260778.3
DATE: February 12, 1996
TITLE: Deployable Hospital Systems, Inc.
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REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Deployable Hospital Systems, Inc.
File: B-260778.2; B-260778.3
Date: February 12, 1996
Michael A. Gordon, Esq., and Fran Baskin, Esq., Holmes, Schwartz &
Gordon, for the protester.
Barbara S. Kinosky, Esq., Bean, Kinney & Korman, for TVI Corporation,
an interested party.
Robert B. Tauchen, Esq., and Gregory H. Petkoff, Esq., Department of
the Air Force, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that contracting agency improperly determined that awardee
satisfied a definitive responsibility criterion requiring it to
provide evidence of recent sales of the item being procured or similar
items is denied where the agency's determination that the awardee's
recent sales constituted sales of "similar items" is fully and
reasonably supported.
2. Protest that contracting agency improperly evaluated awardee's
financial capability as part of the technical evaluation by ignoring
evidence questioning the findings of a pre-award survey is denied
where the contracting officer considered this evidence and reasonably
determined, notwithstanding that information, that the firm remained
financially capable of performing the contract.
3. Protest asserting disparate treatment and improper evaluation of
technical proposals is denied where the record shows that the
evaluation of proposals was reasonable and consistent with the
solicitation's evaluation criteria save for one aspect, and correction
of this aspect of the evaluation in the manner most favorable to the
protester would not affect the reasonableness of the award
determination since, at most, the two offerors would be approximately
technically equal; the protester's price is significantly higher than
that of the awardee; and the agency reasonably states that such a
result would not have affected its best value determination.
DECISION
Deployable Hospital Systems, Inc. (DHS) protests the Department of the
Air Force's decision to affirm its award of a contract, under request
for proposals (RFP) No. FA0021-95-R-0009, to TVI Corporation after
having implemented our recommendation in Deployable Hosp. Sys., Inc.,
B-260778, July 21, 1995, 95-2 CPD para. 65. In that decision, we
sustained DHS' protest of the original award to TVI because the Air
Force's failure to document its technical evaluation and its
determination that TVI satisfied a definitive responsibility criterion
compelled a conclusion that they lacked a reasonable basis. DHS now
challenges various aspects of the Air Force's reevaluation and the
subsequent award decision.
We deny the protest.
BACKGROUND
The solicitation sought offers for a fixed-price contract for
deployable integrated mobile hospital tent systems. A total system
satisfying the requirement consisted of shelters--or tents--and their
associated equipment, packed within trailers providing transport,
storage, electrical power, and heating, ventilation and air
conditioning (HVAC) support.
Award was to be made to the offeror providing the best overall value
to the government. Proposals would be evaluated based on an
integrated assessment of quality and price, with quality somewhat more
important than price. Quality encompassed two equally important
evaluation factors, technical quality and quality control. The
technical quality factor contained four subfactors, in descending
order of importance: technical specification compliance,
interoperability, total system, and expeditious setup. The importance
of price was to increase as the quality differences between proposals
decreased.
The RFP also listed, as less important, several general considerations
that would be considered in the technical evaluation, including
pre-award survey results, financial capability, and level of
experience in similar acquisitions. Section LH-173 of the RFP
discussed the contracting officer's need to make a responsibility
determination and required offerors to provide, as a minimum, a list
of the three most recent sales of "this or similar items/services" to
commercial concerns or government activities.
TVI and DHS were the only offerors submitting proposals. Each offeror
submitted a technical proposal, a price proposal, and a training
videotape. The evaluators rated both offers acceptable under each
technical factor and subfactor, and the Defense Contract Management
Area Operations (DCMAO) office's pre-award survey of TVI and its
proposed subcontractor for trailer manufacture resulted in
satisfactory findings.[1] The contracting officer concluded that both
proposals were essentially technically equal, noting, however, that
TVI's proposal was superior with respect to the expeditious setup
subfactor, and turned to a consideration of price--TVI's offered price
was $1,367,104 and DHS' was $1,815,755. She stated that DHS's higher
price could not be justified for a substantially equal technical
solution, and, on March 6, 1995, awarded TVI the contract. In
sustaining DHS' protest of the award for the reasons cited above, we
recommended that the Air Force reevaluate the proposals, adequately
document the evaluation, and make a best value determination based
upon the reevaluation results.
In its reevaluation, the Air Force determined that TVI satisfied the
definitive responsibility criterion and all of the unrated general
considerations, including financial capability. In addition, TVI's
proposal was now rated superior[2] under both the technical quality
factor and the quality control factor. DHS' proposal was rated
acceptable under both factors. Based upon these findings and a
consideration of the large difference between the offerors' prices,
the Air Force affirmed its award to TVI.
DHS' protest challenges the agency's determinations as to TVI's
satisfaction of the definitive responsibility criterion and the
financial capability consideration, as well as the agency's evaluation
of the offerors' technical proposals.
DEFINITIVE RESPONSIBILITY DETERMINATION
DHS argues that the Air Force improperly determined that TVI satisfied
the solicitation's requirement to provide evidence of recent sales of
"this or similar items."
The solicitation required offerors to provide, as a minimum, "a list
of the three most recent sales of this or similar items/services . . .
." The parties do not dispute that this requirement, which calls for
the prospective contractor to have a designated number of projects in
a specific area completed, is a definitive responsibility criterion,
see D.H. Kim Enters., Inc., B-255124, Feb. 8, 1994, 94-1 CPD para. 86,
which is a specific and objective standard established by an agency
for use in a particular procurement for the measurement of an
offeror's ability to perform the contract. Federal Acquisition
Regulation (FAR) sec. 9.104-2; BBC Brown Boveri, Inc., B-227903, Sept.
28, 1987, 87-2 CPD para. 309.
A contracting agency has broad discretion in determining whether
offerors meet definitive responsibility criteria, since the agency
must bear the brunt of any difficulties experienced in obtaining the
required performance. BMY, Div. of Harsco Corp., B-233081;
B-233081.2, Jan. 24, 1989, 89-1 CPD para. 67. Where an allegation is made
that definitive responsibility criteria have not been satisfied, we
review the record to ascertain whether evidence of compliance has been
submitted from which the contracting officer reasonably could conclude
that the criteria have been met. BBC Brown Boveri, Inc., supra. In
making a determination regarding an offeror's compliance with a
definitive responsibility criterion, a general statement by the agency
of its rationale is all that is required. Deployable Hosp. Sys.,
Inc., supra.
The criterion in question here could be satisfied by an offeror's
providing evidence of three recent sales of "this or similar items."
This solicitation seeks offers for soft shelters packed within a
utilities trailer--a soft shelter system. TVI's proposal lists only
one such contract, which was terminated for convenience prior to
performance, and its trailer subcontractor lists no such contracts and
claims no such sales. Since TVI has no recent sales of a soft shelter
system--shelters with a trailer--the question is whether the
contracting officer reasonably determined that TVI's sales of soft
shelters alone, under six recent contracts, and/or its sales of
targets and decoys, under four recent contracts, are sales of
"similar" items, so as to satisfy this criterion.
During the reevaluation, the contracting officer prepared detailed
findings in which she concluded that TVI's recent sales of soft
shelters alone, and its recent sales of targets and decoys, were sales
of "similar" items sufficient to show TVI's compliance with this
criterion. In addition to the fact that the soft shelters previously
sold were the same shelters proposed for this contract, she concluded
that TVI had extensive manufacturing experience with targets and
decoys whose manufacturing process was sufficiently similar to that
required for the soft shelters that the criterion was satisfied. In
this regard, the multi-dimensional targets and decoys manufactured by
TVI are quick-erect, expandable units, constructed of an articulating
strut frame covered with a canvas-type material--which is the same
technology used for the soft shelters.
The essence of DHS' challenge is that an offeror must have recent
sales of both the shelters and the utilities trailers to meet this
criterion and that, since TVI has not previously sold or manufactured
the trailers, it cannot reasonably meet the criterion. However,
previous sales of both the shelters and trailers would clearly
constitute evidence of sales of "this item"--the system required here.
The protester's proffered reading of the criterion thus is
unreasonable, since it would eliminate the "similar" item provision
from the criterion.
In concluding that TVI had recent sales of "similar" items sufficient
to satisfy the definitive responsibility criterion, the contracting
officer documented her findings that TVI's manufacturing experience
related to its recent sales of shelters alone, and targets and decoys,
is similar to the process required here, noting various construction
similarities. Since her determination that TVI's recent sales
involved "similar items" is supported by the record, we have no basis
to find it unreasonable. See Restec Contractors, Inc., B-245862, Feb.
6, 1992, 92-1 CPD para. 154.
FINANCIAL CAPABILITY
DHS contends that the Air Force's reliance upon TVI's pre-award survey
results in determining the firm's financial capability improperly
ignored evidence produced prior to the reevaluation, which calls those
survey results into question.
In reevaluating TVI's proposal with respect to financial
capability,[3] the contracting officer acknowledged that her initial
evaluation relied upon DCMAO's pre-award survey findings. In that
survey, DCMAO reviewed copies of TVI's financial information, provided
over the signature of TVI's then-president, Mr. Brent Molovinsky.
DCMAO concluded that the firm had made a strong recovery from its 1991
bankruptcy; had a strong ability to meet cashflow needs; and had
sufficient working capital available to perform the contract.
During the initial protest, DHS submitted documents which questioned
DCMAO's positive assessment of TVI's financial capability. In a March
1995 bankruptcy court filing, TVI's shareholders' committee objected
to a report filed by Mr. Molovinsky, asserting that it contained false
or misleading information. The committee stated that there was
evidence that the firm had been extremely unprofitable for the last 2
years; that Mr. Molinovsky had not filed required financial reports;
and that there was a pattern of concealment and evidence of improper
use of company assets. The firm's June 2 report to its shareholders,
issued after Mr. Molovinsky was asked to resign, suggested that, based
upon preliminary review, TVI had long been operating at a very low
level of sales and with a significant monthly loss, resulting in
cashflow problems; that the firm had not filed required bankruptcy
reports and had deviated from its bankruptcy reorganization plan; and
that the firm had violated several Securities and Exchange Commission
regulations related to the sale of stock. With respect to the status
of the firm's records, the report stated that initial investigations
suggested significant malfeasance by Mr. Molovinsky.
In reevaluating TVI's proposal, the contracting officer stated that
she had reviewed these documents and concluded that there was nothing
to indicate that TVI did not presently have the backing of its
financial institution to execute the contract, or the ability to
obtain it. The June 2 report specifically addresses each element of
TVI's financial status and sets forth the management action proposed
to resolve the problems. With respect to the status of its working
capital, the report states that TVI believes its "long standing ally,"
Capital Bank, will finance requirements for government contracts.
After the issuance of our initial decision, Capital Bank provided the
contracting officer with a letter in which it confirmed that it had
agreed to provide TVI with short-term credit to complete the contract,
which would ensure that the company had adequate financial resources
to perform.[4]
For a procuring agency to ignore extrinsic evidence indicating that an
offeror may not be able to perform would be unfair to the agency and
to the other competitors, and thus is inconsistent with the
competitive procurement system. See Continental Maritime of San
Diego, Inc., B-249858.2; B-249858.3, Feb. 11, 1993, 93-1 CPD
para. 230. Here, however, the contracting officer did not ignore the
extrinsic evidence provided by DHS, but reviewed it and concluded
that, notwithstanding this information, TVI had the financial
capability to perform the contract. In light of the contracting
officer's consideration of this evidence, including the fact that
TVI's management had clearly set forth the steps it planned to take to
recover its businessworthiness, and the fact that a bank was willing
to provide working capital to TVI, we cannot conclude that her
evaluation of TVI as financially capable was unreasonable. See
Transco Contracting Co., B-228347.2, July 12, 1988, 88-2 CPD para. 34.
DHS contends that Mr. Molovinsky provided DCMAO with fraudulent
information which tainted TVI's entire proposal requiring its
rejection. However, as we stated in our initial decision, the record
before us concerning this issue is so speculative as to preclude any
conclusion of fraudulent activity. TVI's own report to its
shareholders clearly states that it is based on "incomplete records
and preliminary examination," and that "little if any has been
verified and is simply based upon the best documents or information
available." Moreover, the basis for the charge of malfeasance against
Mr. Molovinsky primarily concerns his failure to keep adequate records
and file timely financial reports, which suggests, at most,
negligence. Such preliminary and speculative information affords us
no basis to find any fraud here, much less a basis to reject TVI's
proposal. See Deployable Hosp. Sys., Inc., supra.
EVALUATION OF TECHNICAL PROPOSALS
DHS argues that the Air Force's reevaluation of the offerors'
technical proposals lacks a rational basis and evidences a disparate
treatment of the two offerors.
We will review an evaluation to ensure that it was reasonable and
consistent with the stated evaluation criteria. Newport News
Shipbuilding and Dry Dock Co. et al., B-261244.2 et al., Sept. 11,
1995, 95-2 CPD para. 192. The determination of the merits of proposals is
primarily a matter of administrative discretion which we will not
disturb unless the evaluation was arbitrary or unreasonable. See
Realty Executives, B-237537, Feb. 16, 1990, 90-1 CPD para. 288. The fact
that a protester does not agree with the evaluation does not render
the evaluation unreasonable. Logistics Servs. Int'l, Inc., B-218570,
Aug. 15, 1985, 85-2 CPD para. 173. In a best value procurement, as here,
where there is a substantial price difference between the protester's
proposal and the awardee's proposal, the protester, in order to
prevail, must show that its proposal should have been evaluated by the
agency not just as essentially technically equal or close in technical
merit, but as overall technically superior to the awardee's proposal.
See Newport News Shipbuilding and Dry Dock Co. et al., supra;
Scheduled Airlines Traffic Offices, Inc., B-253856.7, Nov. 23, 1994,
95-1 CPD
para. 33.
Technical Quality
As indicated above, for the technical quality factor, which contained
four subfactors (technical specification compliance, interoperability,
total system, and expeditious setup), TVI's proposal was rated
superior and DHS' acceptable. The first subfactor, technical
specification compliance, involved a review of the extent to which the
offerors complied with the RFP's technical specifications. DHS'
proposal was rated acceptable under all of the specifications, except
training, where it was rated superior. TVI 's proposal was rated
acceptable under all of the specifications, except the operation and
the frame specifications, where it was rated superior. Since TVI
scored higher in these two areas, the Air Force rated its proposal
superior overall for technical specification compliance. DHS'
proposal was rated acceptable.
DHS challenges the evaluation with regard to numerous specifications.
As the following examples illustrate, our review of the record in this
matter shows that DHS' challenge consists of its disagreement with the
agency's judgment, premised largely upon its misreading or selective
reading of the record, and affords us no basis to find this aspect of
the evaluation unreasonable.
For example, the life cycle specification required an indefinite life
cycle for the shelter frame and an exterior fabric liner with
specified characteristics. Both proposals were rated acceptable
because both firms proposed to comply with the requirements. While
DHS complains that the agency ignored its experience in producing
these shelters, we see no basis to conclude that that experience, in
itself, evidences that its shelters will have a longer life cycle.
DHS also asserts that the agency ignored favorable user input about
its product, but the contracting officer's memorandum of her
discussions with users about both offerors' products contains the
information to which DHS refers, as well as favorable and unfavorable
information about both offerors' products. Finally, DHS' insistence
that a test report shows the "fragility" of the TVI shelter is
rebutted by information showing that the damage suffered was due not
to any inherent life-cycle deficiency, but to user misuse.
DHS next objects that, in reevaluating the proposals under the wind
and snow loading specification, for which both proposals were rated
acceptable, the agency ignored test data DHS submitted in support of
its claim to meet the wind loading requirements and ignored TVI's lack
of objective evidence to support its similar claim. The Air Force did
not ignore this information, but specifically referenced the
respective proposal sections in which it was contained. In addition,
DHS' statement concerning its test data is matched by TVI's additional
support for its claim. TVI explains that its shelters have survived
the winds of helicopter overflight, and states that the stress of the
calculated wind loads is significantly less than that of the snow
loads, for which it was tested. In view of the agency's full
consideration of this matter, including TVI's additional supportive
information, we have no reason to believe that the evaluation was
unreasonable.
Finally, the frame specification required that structural
tubing/framing be of sufficient size and strength to be durable and
lightweight, "such as 0.625" aluminum tube, 2024 T-3 series" aluminum
alloy or lightweight high strength steel. TVI proposed to have struts
that were .635" thick and made of the stated alloy. DHS proposed to
have struts that were [DELETED] thick and made of a different alloy.
The agency rated DHS' proposal acceptable because it met the thickness
requirement, albeit with an unspecified alloy. TVI's proposal was
rated superior because the Air Force believed its frame was more
robust based upon its thicker struts, made of the specified alloy;[5]
a user report asserting that TVI's frame is stronger than that of DHS;
and DHS' training video, which states that if erection and striking is
not done evenly and with continual eye contract, its struts can be
broken. DHS argues that the user report elsewhere states that,
according to a user, the negative information concerns an older, less
strong version of the DHS frame; however, that user's statement was
made a year after proposals were submitted, and DHS has not made it
clear whether the newer frame to which the user refers is the one it
offered under this proposal. DHS' failure to address this issue, as
well as its failure to address the offerors' differing strut
thicknesses and its own admission concerning the fragility of its
shelter, leaves us with no basis to find the evaluation unreasonable.
See Mevatec Corp., B-260419, May 26, 1995, 95-2 CPD para. 33.
The first of the remaining subfactors, interoperability, involves
consideration of compatibility with the DHS shelters and trailers that
already exist in the Air Force's inventory. In brief, all shelters
must be able to interconnect, such as by way of a "boot" or other
interconnecting component, and be erectable and repairable with the
shelters of different manufacturers at the system level. Both
proposals were rated acceptable because, respectively, DHS stated that
its shelters were interoperable, and TVI stated that its shelters
could be modified, with minor design adjustments, to be interoperable
with other shelters. DHS argues that these identical ratings evidence
disparate treatment because DHS has accomplished the requirements,
without design adjustments, and TVI merely states that it believes its
proposed design will be interoperable with only minor modifications.
However, nothing in the RFP dictates that actual accomplishment of the
requirements, in and of itself, warrants a superior rating, and there
is no reason to question TVI's representations.
Similarly, the total system subfactor required firms to supply tents
that could be packed within the trailer, and a trailer unit meeting
the requirements, for a total system. Both offerors received
acceptable ratings because both proposals contained evidence that the
firms could meet these requirements. We again reject DHS' argument
that TVI should have been found unacceptable because it has no
experience in manufacturing or integrating a total system, as the
subfactor does not require such experience for an acceptable rating,
and TVI's proposal supports the evaluation result.
Finally, the expeditious setup subfactor required firms to provide a
system with quick erecting capability--each shelter must be erectable
in less than 4 minutes, and fully equipped with standard equipment in
less than 10 minutes by six trained personnel for a large shelter or
four trained personnel for a medium or small shelter. TVI's proposal,
rated superior, stated that its shelters were erectable by two to four
personnel in under 4 minutes, and could be fully equipped in under 10
minutes using no special tools or push poles. DHS' proposal, rated
acceptable, stated that its large shelter was erectable in less than 4
minutes[6] and could be fully outfitted in less than 10 minutes using
six trained personnel, and its medium and small shelters could be
fully set up and outfitted using four trained people in less than 10
minutes. DHS also utilizes a push pole to erect the shelters. The
Air Force rated TVI's proposal superior for two reasons. First, TVI
required a minimum of two people and DHS required a minimum of four
people for erection and setup, and the agency reasonably found that
the use of fewer personnel was more efficient. Second, the Air Force
believed that the streamlined method of TVI's shelter erection, absent
push poles, was beneficial.
DHS argues that the agency improperly failed to investigate how many
people were needed to erect TVI's large shelter; whether TVI's setup
time was based on a small shelter; or whether TVI's time for having
the shelter fully equipped included various items. However, TVI's
proposal clearly states that "its shelters were erectable by 2-4
personnel in under 4 [minutes], fully equipped in under 10 minutes. .
. ." There is no reason to believe that this statement does not refer
to all of its shelters, nor is there any reason to believe that the
expression "fully equipped" does not mean what it says. As to DHS'
belief that the Air Force is "silly" to find beneficial value in TVI's
streamlined erection method, and that other aspects of TVI's erection
are detrimental, this disagreement with the agency's judgment is
insufficient to render that judgment unreasonable. Fermont Div.,
Dynamics Corp. of Am., B-257373.3
et. al., Dec. 22, 1995, 95-2 CPD para. .
In sum, the protester has not shown that TVI's superior rating or DHS'
acceptable rating for the technical quality factor were unsupported or
unreasonable.
Quality Control
Although, as noted in our prior decision, the language of the quality
control factor and subfactor is unclear,[7] it appears to allow an
offeror to demonstrate its quality control expertise by virtue of its
experience in manufacturing similar systems or through explanations of
such issues as specific inspection techniques and corrective actions.
In its reevaluation, the Air Force broke the factor down into two
areas: quality control processes, wherein it evaluated the offerors'
quality assurance processes, and experience level, wherein it
evaluated the offerors' experience in manufacturing similar
systems.[8]
The Air Force rated TVI's proposal superior and DHS' proposal
acceptable under the quality control processes aspect, based on the
contents of the proposals; DHS' favorable past performance; TVI's
pre-award survey results; and the offerors' differing warranty terms.
The Air Force stated that it made the distinction because TVI provided
insight into its subcontractor's quality control processes by citing
compliance with a military quality control standard, and DHS did not,
and because TVI offered a longer warranty term than did DHS. Our
review of the record shows that the agency's evaluation here is
unreasonable.
The contents of the two proposals contain marked differences. DHS'
proposal included a thorough total quality management policy
delineating the quality responsibilities of each department head. DHS
addressed the steps it takes with respect to the quality assurance of
its subcontractors, and its trailer subcontractor specifically states
its experience with the military quality control standard--the agency
was wrong to state otherwise and failed to acknowledge this error when
it was raised. Finally, DHS provided an exhaustive set of total
quality management procedures for each step in the manufacturing
process, as well as its quality control check lists for the frame,
fabric, and trailer, and a sample certificate of inspection and
quality control. In contrast, TVI's proposal simply states that it
and its subcontractors meet the quality assurance requirements of the
military standard and provides a sketchy outline of its overall
quality control. This general nod to the solicitation's requirements
is not augmented by TVI's pre-award survey results,[9] which show
nothing more than is contained in the proposal. While we do not
dispute the use of warranty terms as a measure of quality assurance
processes and cannot conclude that the record, as a whole, does not
support an acceptable rating for TVI, the agency could not reasonably
conclude that TVI's proposal is superior under this factor.
Nevertheless, we see no basis to conclude that the agency's error in
the evaluation under the quality control factor would have changed the
award decision. Assuming an adjustment in scores most favorable to
DHS, the ratings of the proposals under the quality control factor
would be reversed--TVI's would change from superior to acceptable,
while DHS' would change from acceptable to superior. Their ratings
under the other, equally important technical factor (technical
quality) would remain unchanged (DHS' proposal, acceptable; TVI's
proposal, superior). Accordingly, adjusting the quality control
scores in the manner most favorable to the protester would, at most,
make the proposals approximately technically equal. Where proposals
are essentially technically equal, price may become the determinative
factor in making an award, notwithstanding that the evaluation
criteria assigned price less importance than technical considerations.
Ogilvy, Adams & Rinehart, B-246172.2, Apr. 1, 1992, 92-1 CPD para. 332.
Considering the RFP's specific instruction that the importance of
price would increase as the quality differences between proposals
decreased, we have no basis to question the agency's best value
determination in light of DHS' substantially higher price. See
Newport News Shipbuilding and Dry Dock Co. et al., supra. Indeed,
the agency confirms that even if DHS' technical ratings had improved,
given the substantial differences between the two offerors' prices,
its award decision would have been the same.
The protest is denied.
Comptroller General
of the United States
1. Since DHS had previously provided shelters to this activity, the
Air Force determined that a pre-award survey of the firm was
unnecessary.
2. The possible adjectival ratings were "insufficient data,"
"unacceptable," "acceptable," or "superior."
3. While an offeror's financial capability to perform a contract is a
traditional responsibility factor, see FAR sec. 9.104-1, in appropriate
circumstances, and where the solicitation so apprises offerors,
financial capability may be used to assess the relative merits of
individual proposals. E.H. White & Co., B-227122.3; B-227122.4, July
13, 1988, 88-2 CPD para. 41. This solicitation clearly apprised offerors
of the Air Force's intention to consider financial capability in the
technical evaluation as one of the less important general
considerations.
4. We do not agree with DHS that the agency's review of this letter
constituted improper discussions solely with TVI. Discussions occur
when an offeror is given an opportunity to revise or modify its
proposal, or when information provided by an offeror is essential for
determining the acceptability of its proposal. FAR sec. 15.601;
Motorola, Inc., 66 Comp. Gen. 519 (1987), 87-1 CPD para. 604. This letter
merely clarified the statement in the shareholder's report concerning
the firm's working capital, and there is nothing to suggest that it
had any bearing on the agency's determination that TVI's proposal was
acceptable. See Jack Faucett Assocs.,
B-254421.2, Feb. 18, 1994, 94-1 CPD para. 204.
5. In discussing the qualities of the different alloys, the Air Force
quoted a passage from a data sheet submitted by TVI's counsel during
the course of the initial protest. For the same reasons discussed
above, we do not agree with DHS that the agency's consideration of
this document constituted improper discussions. This communication
did not revise TVI's proposal, but merely confirmed information
already in the agency's possession and, thus, constituted a
permissible clarification. See FAR sec. 15.601; Jack Faucett Assocs.,
supra.
6. Another section of DHS' proposal gives this setup time as 5
minutes, which does not meet the specification.
7."(4) Quality control is the implementation of a controlling
process that can identify and correct any structural or
design problem before, during, and after production of the
product.
"(a) Firms with an experience level in the manufacturing of
similar systems with the capability to build in sufficient
quantity/quality to meet delivery. Firms should demonstrate
the expertise to predict product quality concerns, i.e.,
specific inspection techniques and corrective actions might be
one area addressed."
8. For the same reasons that we find that the contracting officer
reasonably determined that TVI complied with the definitive
responsibility criterion, we reject DHS' argument that TVI should have
been rated unacceptable, instead of acceptable, under the experience
level aspect of this factor. DHS was rated superior here.
9. DHS argues that the agency improperly utilized the pre-award survey
results to evaluate this factor, but the solicitation specifically
states that the pre-award survey results would be considered.
Moreover, in evaluating proposals, contracting agencies may consider
any evidence, even if that evidence is entirely outside the proposal,
so long as the use of the extrinsic evidence is consistent with
established procurement practice. Intermagnetics Gen. Corp.--Recon.,
B-255741.4, Sept. 27, 1994, 94-2 CPD para. 119.