BNUMBER: B-262181.3
DATE: June 4, 1996
TITLE: Northrop Worldwide Aircraft Services, Inc.--Reconsideration
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Matter of:Northrop Worldwide Aircraft Services, Inc.--Reconsideration
File: B-262181.3
Date:June 4, 1996
J. William Eshelman, Esq., and Michael C. Poliner, Esq., Feith and
Zell, for the protester.
Devon E. Hewitt, Esq., and R. Timothy Hanlon, Esq., Shaw, Pittman,
Potts & Trowbridge, for Loral Training and Technical Services, Inc.,
an interested party.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Request for reconsideration of decision denying protest on ground that
protester was not prejudiced by agency's failure to hold meaningful
discussions is denied where the record showed that there was no
reasonable possibility that protester was prejudiced; protester's
attempt in request for reconsideration to demonstrate prejudice
provides no basis for reconsidering decision given that protester had
available to it during the course of the initial protest information
that would have allowed it to present specific and credible support
for its position, but failed to do so.
DECISION
Northrop Worldwide Aircraft Services, Inc. requests reconsideration of
our decision in Northrop Worldwide Aircraft Servs., Inc., B-262181,
Oct. 27, 1995, 95-2 CPD para. 196, denying its protest of the award of a
contract to Loral Training and Technical Services under request for
proposals (RFP) No. F26600-94-R-0172, issued by the Department of the
Air Force for the operation and maintenance of electronic threats and
targets on the U.S. Air Force Weapons and Tactics Center Range Complex
at Nellis Air Force Base, Nevada.
We deny the request for reconsideration.
Proposals were evaluated with respect to technical merit, current and
past performance, and cost, listed in descending order of importance.
The technical merit factor and its subfactors were evaluated using
both color/adjectival ratings and proposal risk ratings. The
color/adjectival ratings represented the evaluators' views as to an
offeror's understanding of and compliance with the requirements, as
well as the soundness of its approach. The proposal risk ratings
represented the risks associated with each proposal.[1] Offerors'
current and past performance proposals were evaluated using these same
color/adjectival ratings, as well as performance risk ratings of high,
moderate, low, or not applicable. Cost proposals were evaluated for
realism and reasonableness. Award was to be made to the offeror whose
proposal was most advantageous to the government.
The evaluation of the best and final offers (BAFO) of Loral and
Northrop yielded the following results:
Loral Northrop
Technical Merit Green\Low Green\High
Operations Blue\Low Green\High
Maintenance Green\Low Green\Moderate
Management Green\Low Blue\Low
Logistics Green\Low Green\Low
Technical Innovation Blue\Low Blue\Low
Current\Past
Performance Blue\Low Green\Moderate
Evaluated Cost $85.8 million $69.7 million
The source selection authority (SSA) determined that, while Northrop
offered the lowest cost with an acceptable technical approach, its
"aggressive manning posture" presented a risk to schedule, cost and
performance, especially in the two most important technical areas of
operations and maintenance. Further, while Northrop had an acceptable
performance history, it posed a moderate risk to schedule, cost and
management. The SSA stated that, given its aggressive manning,
Northrop might require significant, serious intervention in terms of
money and management oversight. The SSA concluded that Northrop's
lower cost was not worth the high proposal risk and moderate
performance risk,[2] and that Loral's proposal represented the best
value to the government.
In its protest, Northrop argued that the Air Force improperly failed
to discuss with the firm the concerns over its "aggressive manning
posture" which led to its high risk technical merit rating. We
agreed. The record showed that Northrop's proposal was downgraded
under the risk element of the operations and maintenance subfactors
for its "aggressive manning posture"--or low staffing levels--and that
this criticism was a significant factor in the selection decision. We
concluded, however, that Northrop was not prejudiced by the Air
Force's failure to raise these issues with the firm. Northrop's
request for reconsideration disagrees with this conclusion.
Specifically, Northrop argues that we failed to apply the presumption
of prejudice that follows from a finding of inadequate discussions,
and that the record establishes that there was a reasonable
possibility that its proposal's technical rating would have improved
had adequate discussions been held.
Competitive prejudice is an essential element of every viable protest.
Lithos Restoration, Ltd., 71 Comp. Gen. 367 (1992), 92-1 CPD para. 379.
Where improper discussions were held, we will resolve any doubts
concerning the prejudicial effect of the agency's actions in favor of
the protester; a reasonable possibility of prejudice is a sufficient
basis for sustaining the protest. National Medical Staffing, Inc.,
B-259402; B-259402.2, Mar. 24, 1995, 95-1 CPD para. 163. On the other
hand, where no reasonable possibility of prejudice is shown or is
otherwise evident from the record, our Office will not sustain a
protest, even if a deficiency in the procurement is apparent.
MetaMetrics, Inc., B-248603.2, Oct. 30, 1992, 92-2 CPD para. 306.
As stated in our decision, we concluded that the record failed to show
a reasonable possibility of prejudice to the protester due to the lack
of discussions. First, we found no evidence that discussions might
have enabled Northrop to improve its proposal's technical merit rating
from green to blue. The technical evaluators' negative comments as to
operations and maintenance were specifically linked to proposal risk,
not to the considerations reflected in the color rating (the offeror's
understanding of and compliance with the requirements, as well as the
soundness of its approach).[3] Thus, even if Northrop had been
apprised of the Air Force's concerns with its "aggressive manning
posture," and improved its proposal's risk rating as a result, the
maximum rating its proposal would have received had it alleviated
these concerns is green/low, the same as Loral's. Second, the record
showed that the current and past performance ratings were pivotal in
the SSA's source selection decision, and Loral's ratings in this
regard significantly exceeded those of Northrop. Finally, we were not
persuaded by Northrop's argument that the cost difference between the
two proposals supported a finding of prejudice, as the cost difference
unquestionably would be narrowed by any addition of personnel to
Northrop's proposal.
In sum, we did not consider this to be an instance where prejudice was
evident from the record. Accordingly, this was not an appropriate
case in which to presume prejudice from the lack of discussions. On
the contrary, where, as here, prejudice is not otherwise evident and
the protester has sufficient information to show a reasonable
possibility of prejudice and fails to do so, relying solely on general
allegations of prejudice, our Office will deny the protest. Compare
Colonial Storage Co.--Recon., B-253501.8, May 31, 1994, 94-1 CPD para.
335; Labrador Airways Ltd., B-241608, Feb. 13, 1991, 91-1 CPD para. 167.
Counsel for Northrop had at its disposal (pursuant to a protective
order issued in this case) voluminous information related to proposal
evaluation and source selection, including the complete evaluation
documentation of its initial and revised proposals, as well as its
BAFO, and all documentation related to the award decision. Northrop
did not use this information to show how appropriate discussions could
have improved its proposal's technical merit rating from green to
blue. Instead, Northrop relied on the generalized statement that,
"[t]he presumption [of prejudice] is hardly necessary in this case
because the prejudice is so manifest." The bulk of Northrop's
arguments with respect to prejudice concerned the subject of its
supplemental protest challenging its current and past performance
rating, a protest which we dismissed as untimely during the pendency
of the initial protest. That the Air Force's pleadings with respect
to prejudice also focused on this issue did not relieve the protester
of the burden of arguing that it was prejudiced here. The protester
was clearly aware of the two distinct aspects of the technical merit
evaluation, and should have been cognizant of the need to show why its
proposal could have improved with respect to the non-risk aspect.
Under the Bid Protest Regulations applicable to this matter, a request
for reconsideration must specify alleged errors of law made or
information not previously considered by our Office. 4 C.F.R. sec.
21.12(a) (1995). In order to provide a basis for reconsideration,
information not previously considered must have been unavailable to
the party seeking reconsideration when the initial protest was being
considered. Department of the Army--Recon., B-254979.2, Sept. 26,
1994, 94-2 CPD para. 114; Ford Contracting Co.--Recon., B-248007.3;
B-248007.4, Feb. 2, 1993, 93-1 CPD para. 90. A party's failure to make
all arguments or submit all information available during the course of
the initial protest undermines the goal of our bid protest forum--to
produce fair and equitable decisions based on consideration of the
parties' arguments on a fully developed record--and cannot justify
reconsideration of our prior decision. Id. Here, Northrop's request
for reconsideration is based on information and arguments that were
available during the initial protest, but not presented at that time.
That is, during the initial protest Northrop could have explained why
it believed that appropriate discussions could have improved its
technical merit rating from green to blue. Under the circumstances,
Northrop's request does not provide a basis for reconsideration.
Department of the Army--Recon., supra.
The request for reconsideration is denied.
Comptroller General
of the United States
1. The color/adjectival ratings were blue/exceptional,
green/acceptable, yellow/marginal, or red/unacceptable. The proposal
risk ratings were high, moderate, or low.
2. High proposal risk is defined in the RFP as "[l]ikely to cause
significant serious disruption of schedule, increase in price, or
degradation of performance even with special contractor emphasis and
close government monitoring." Moderate performance risk is defined as
"some doubt exists, based on the offeror's performance record, that
the offeror can perform the proposed effort."
3. Northrop's assertion that the agency "admitted" a link between its
staffing approach and the color rating by lowering its color rating
under the maintenance subfactor from blue in the initial evaluation to
green in the final evaluation, after the firm reduced its maintenance
staffing, is not clearly supported by the record. Notwithstanding the
use of the word "blue" in some areas of the initial evaluation
documentation, the full narrative evaluation report shows that
Northrop's proposal was rated green here, just as it was throughout
the evaluation process. Moreover, the weaknesses noted in the final
report were the same as those noted in the initial report, indicating
that any revision in the color rating was not due to the decrease in
maintenance staffing.