BNUMBER: B-271882; B-271882.2
DATE: August 26, 1996
TITLE: Trimble Navigation, Ltd.
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DOCUMENT FOR PUBLIC RELEASE
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:Trimble Navigation, Ltd.
File: B-271882; B-271882.2
Date:August 26, 1996
William W. Goodrich, Jr., Esq., Richard J. Webber, Esq., Alison J.
Micheli, Esq., and Tenley A. Carp, Esq., Arent Fox, for the protester.
Stan Hinton, Esq., and Paul W. Searles, Esq., Baker & Botts, for
Rockwell International Corporation, an intervenor.
Vera Meza-Dombkowski, Esq., and David H. Scott, Esq., Department of
the Army, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In a negotiated procurement for a hand-held global positioning system
receiver, award could not properly be made to an offeror whose
proposal did not demonstrate that it satisfied the solicitation's
requirement for a nondevelopmental item.
DECISION
Trimble Navigation, Ltd. protests the award of a contract to Rockwell
Collins Inc., under request for proposals (RFP) No. DAAD05-96-R-9011,
issued by the U.S. Army Aberdeen Proving Ground Support Activity for
the Special Operations Lightweight Global Positioning System Receiver
(SOLGR). Trimble protests that Rockwell's offered receiver is not a
nondevelopmental item (NDI), as required by the RFP.
We sustain the protest.
The global positioning system (GPS) is a space-based navigation system
that provides military users worldwide with precise three-dimensional
position, velocity, and time data. The standard Department of Defense
hand-held, precise positioning service,[1] GPS receiver used by
general purpose forces is the Precision Lightweight GPS Receiver
(PLGR), which both Trimble and Rockwell have previously provided.
U.S. Special Operations Forces, however, require enhanced performance,
such as extended navigation features, multiple communications
interfaces, and more rugged environmental capabilities, than is
available in the PLGR. In response to this requirement, Trimble and
Rockwell received separate, development contracts to develop
prototypes of the SOLGR for use by Special Operations Forces.
Pursuant to these contracts, Trimble and Rockwell developed separate
prototypes of the SOLGR, which were delivered to the government for
testing.
The RFP here was for a limited competition between Trimble and
Rockwell that would lead to the selection of the firm that would
continue the SOLGR program into production. Fixed-price proposals
were requested for three contract line items (CLIN): CLIN 0001 sought
a fixed price for one lot of manufacture and testing of twenty SOLGR
first articles; CLIN 0002 sought unit pricing for an estimated
quantity of 1,000 receivers; and CLIN 0003 sought pricing for one lot
of specified contract data. The contractor was required to deliver
first articles and to complete first article testing within 240 days
after contract award.
The RFP included design and performance specifications for the SOLGR
which, among other things, established stringent requirements for the
size and weight of the receiver, battery performance, and
environmental considerations--such as the ability to operate to depths
of 33 feet. Offerors were requested to describe how they would meet
each technical requirement and identify any specific requirement that
may not be met. Offerors were also instructed that they may provide
sample hardware "from mockups to fully functional prototypes."
The statement of work (SOW) provided that the receiver must be an NDI.
In this regard, the RFP incorporated by reference the standard
"Definitions" clause stated in Federal Acquisition Regulation (FAR) sec.
52.202-1 (FAC 90-32), which provides, in pertinent part, the following
definition:
"(e) Nondevelopmental item means--
(1) Any previously developed item of supply used exclusively
for governmental purposes by a Federal agency, a State or
local government, or a foreign government with which the
United States has a mutual defense cooperation agreement;
(2) Any item described in paragraph (e)(1) of this definition
that requires only minor modification or modifications of a
type customarily available in the commercial marketplace in
order to meet the requirements of the procuring department or
agency; or
(3) Any item of supply being produced that does not meet the
requirements of paragraph (e)(1) or (e)(2) solely because the
item is not yet in use."
Offerors were informed that award would be made on a best value basis
and that technical evaluation factors were slightly more important
than price. The RFP stated a number of evaluation factors that judged
the design and performance of offered receivers; system weight/volume
and battery life were identified as the two most important evaluation
factors, being more important than the combined remainder of the
evaluation factors. Offerors were informed that risk associated with
achieving each system parameter would be evaluated under each
evaluation factor/parameter and that offered enhancements beyond the
system requirements may be provided with additional consideration.
The RFP also stated that to be found acceptable, their proposals must
demonstrate (1) understanding of the technical requirements and the
means required to fulfill the technical requirements; (2) completeness
of the offerors' analyses of each factor and subfactor; and (3) the
"[f]easibility of performing all the terms and conditions of the offer
within the cost proposed by the offeror."[2]
Trimble and Rockwell submitted proposals, including demonstration
models of their proposed receivers, by the March 15, 1996, proposal
closing date. In addition, each offeror made an oral presentation to
the technical evaluation board (TEB). Rockwell was asked numerous
questions during its oral presentation concerning its offered,
redesigned receiver.[3] As documented by the TEB's March 29 report,
Trimble's technical proposal received a total score of [DELETED]
points of a possible [DELETED] maximum points and was determined to be
"[DELETED]" to Rockwell's proposal, which received a point score of
[DELETED].
The TEB found that Trimble's offered SOLGR was [DELETED] and that the
prototype "[DELETED] had already passed most of the testing to qualify
against the SOLGR specification." The TEB concluded that Trimble's
proposal was [DELETED]. Rockwell's proposal, on the other hand, was
found to be "[DELETED]." Specifically, the TEB found:
"[DELETED]."
Trimble and Rockwell offered the following fixed prices to perform the
contract:
CLIN Trimble Rockwell
0001 $[DELETED] $0
0002 $[DELETED] $1,699,000
0003 $[DELETED] $0
TOTAL $[DELETED] $1,699,000
Price proposals were evaluated for realism and reasonableness.
Although limited cost information was provided with the offerors'
proposals and Rockwell's proposed production unit price of $[DELETED]
per unit was [DELETED] the government's estimate of $[DELETED] per
unit, the Army concluded that each firm's proposed price was realistic
and reasonable.
The technical evaluation findings were documented in evaluators'
notes, consensus scoring sheets, and TEB report, which were presented
to the source selection authority (SSA), along with the firms'
proposals. Hearing Transcript (Tr.) at 69-70, 86-87.[4] On April 8,
the SSA met with the TEB chairman and the cost/price analyst for the
procurement. The TEB chair and cost/price analyst testified that
there was little discussion concerning the technical evaluation, that
the SSA only asked the TEB chairman whether he could make a case for
award to Trimble at that firm's higher proposed price, and that the
TEB chairman responded, non-specifically and without explanation, that
he could not. Tr. at 58-59, 71, 201. The SSA testified that in
selecting Rockwell's offer for award he understood that Rockwell had
submitted a new model which reflected a significant redesign of the
firm's earlier prototype, but that he nevertheless believed that
Rockwell's unit satisfied the RFP's NDI requirements. Tr. at 93-94,
96, 98. Although no written source selection decision was made, the
SSA concluded that Trimble's [DELETED] higher technical score was not
worth the price premium, which the SSA erroneously believed to be
[DELETED] percent higher than Rockwell's price.[5] Tr. at 115-116.
Award was made to Rockwell on April 11, and this protest followed.
This matter has been stayed pending our decision on the merits.
Trimble argues that the Army could not properly accept Rockwell's
proposed SOLGR, which was not an NDI, as required by the RFP. Trimble
contends that, as the agency's evaluators found during the technical
evaluation, the modifications Rockwell proposed to its earlier
produced prototype are not "minor modifications" and therefore
Rockwell's proposal was unacceptable.
The Army responds that Rockwell's proposed receiver was properly
determined to be an NDI, because "NDI is a generic term," which allows
the government to purchase items that may already exist and which may
require some modification to satisfy the government's specification
requirements. The Army and Rockwell argue that offerors were on
notice that the agency would accept substantial modifications of
receivers because the RFP specifications had been revised since the
development of the SOLGR prototypes. In this regard, the Army notes
that both Rockwell's and Trimble's prototype receivers required some
redesign to satisfy the RFP requirements.
The RFP requirement for an NDI is in accord with the stated
Congressional intent in the Federal Acquisition Streamlining Act of
1994 (FASA) that contracting agencies acquire, to the maximum extent
practicable, commercial items or NDIs. See 10 U.S.C. sec. 2377(b)(1)
(1994). To this end, FASA established a preference for the
acquisition of commercial items or NDIs, where commercial items are
not available, and defined the term NDI. 41 U.S.C. sec. 403(13) (1994);
10 U.S.C. sec. 2376. As noted above, the RFP included the standard
"Definition" clause, FAR sec. 52.202-1, that defined NDI as including any
previously developed item that does not require more than minor
modification to satisfy the agency's needs. This definition is in
accord with the statutory definition. Thus, to the extent that the
agency believes that the term "NDI" is not clearly defined and allows
the agency to buy, as NDI, items that require more than minor
modifications to meet its needs, the agency is simply mistaken.
While the Army and Rockwell argue, in response to the protest, that
offerors were on notice from the revisions made in the SOLGR
specification after the development of prototypes that the RFP
contemplated that offered receivers, which reflected more than minor
modifications to previously developed items, could be considered, the
record does not show that the revisions in the SOLGR specification
were so substantial as to indicate to offerors that the RFP
contemplated a more expansive definition of NDI than that provided by
the solicitation.[6] That these revisions were not substantial is
shown by the fact that Trimble's proposed SOLGR was found to be
[DELETED] to its earlier prototype; the TEB chairman testified that
Trimble proposed only "[DELETED]" of its prototype. Tr. at 17.
Because both Rockwell's and Trimble's SOLGR prototypes, upon which
their offered receivers were based, are a "previously developed item
of supply," the question for our Office is whether the modifications
required in Rockwell's offered receiver could reasonably be determined
to be minor such that it could be considered an NDI. We find from
this record, as explained below, that the modifications proposed by
Rockwell are not minor and that its offered product is not an NDI.
The determination as to whether modifications to a previously
developed item of supply are minor--and thus whether the product
properly fits within the definition of NDI--is within the agency's
technical judgment, which we will overturn only where it is shown to
be unreasonable. TRW Inc.; Systems Research and Applications Corp.,
B-260968.2 et al., Aug. 14, 1995, 95-2 CPD para. 101. In considering
whether a modification is in fact minor, agencies should consider both
the technical complexity of the change and the degree of risk
associated with it. Id.
Here, the record establishes that Rockwell proposed numerous,
significant modifications to its previously developed prototype to
satisfy the RFP requirements. In particular, Rockwell proposed a
redesign of its prototype model to [DELETED]. Tr. at 18, 34-36, 38.
That Rockwell was proposing a modified and redesigned version of its
earlier prototype was recognized by the agency in its evaluation; it
was primarily for this reason that Rockwell's proposal was evaluated
as being [DELETED]. In this regard, the evaluators described
Rockwell's offered SOLGR as being "vastly different" from Rockwell's
prototype, and as being a "new" and "[DELETED]" design that posed
"[DELETED]." The TEB chairman and SSA both testified at the hearing
that Rockwell's offered receiver was "different" from and a
"substantial redesign" of the earlier submitted prototype. Tr. 18,
32, 93, 98. In fact, the SSA testified that his understanding at the
time of making his award decision was that Rockwell had offered "a new
model which reflected a significant redesign of the prototype." Tr.
at 93.
Despite the modifications and redesign evidenced in Rockwell's offered
receiver, the SSA testified that he considered Rockwell's receiver to
be an NDI. Tr. at 95-96. The SSA testified that he discussed with
the TEB chairman and the cost/price analyst whether Rockwell's offered
receiver could be considered an NDI and was assured that it could.
Tr. at 98-99. Specifically, the SSA testified that after
"significant, lengthy discussions" he was convinced that Rockwell's
offered unit was an NDI because it represented minor modifications to
the PLGR. Tr. at 99, 101. The SSA also admitted that, given his lack
of technical knowledge regarding the features modified on the Rockwell
unit, his judgment that the modifications to the PLGR were minor was
based only upon discussions with the TEB chairman. Tr. at 104, 108.
The SSA, however, was unable to provide any details of his reported
discussions with the TEB chairman or the cost/price analyst and was
unable to describe Rockwell's proposed modifications and redesign or
why these modifications and redesign work were only minor. Tr. at
102-104, 106-108.
On the other hand, contrary to the SSA's testimony, the TEB chairman
testified that there was no consideration during the evaluation as to
whether Rockwell's or Trimble's offered receivers were NDIs and that
there was also no discussion with the SSA concerning the Rockwell's
offered unit's NDI status. Tr. at 74. The cost/price analyst also
testified that he was unaware of any discussion with the SSA
concerning whether Rockwell's offered receiver was a NDI. Tr. at 203,
208.
There is no other evidence in the record suggesting that the agency
meaningfully considered whether Rockwell's offered SOLGR was an NDI.
None of the contemporaneous evaluation documentation mentions
consideration of whether Rockwell had offered an NDI; in addition,
there is no source selection documentation to establish that
Rockwell's receiver was found to satisfy the RFP's NDI requirement.
From this record, we conclude that, prior to Trimble's protest, there
was no consideration by the agency as to whether Rockwell's offered
SOLGR unit satisfied the RFP's NDI requirement.
The SSA's testimony that Rockwell's offered receiver satisfied the NDI
requirement is also unpersuasive because it is based upon a comparison
of Rockwell's offered receiver with Rockwell's PLGR, as opposed to its
SOLGR prototype. This argument, which the SSA provided in response to
Trimble's protest arguments, appears based upon the assumption that an
item may be termed an NDI simply if it is constructed of existing
technology.[7] This assumption is inconsistent with the NDI
definition in FASA and the RFP, which require that the scope of
modifications to already produced items of supply be considered to
ascertain whether a particular product can be considered an NDI. As
is suggested by the fact that the SOLGR design was the result of
development contracts that sought to redesign the standard PLGR, the
record is replete with evidence that the PLGR is vastly different from
the SOLGR to be purchased under the RFP. The RFP's SOW described
numerous features and capabilities--including, the ability to operate
under water, reduced size and weight, and much larger number of
programmable navigation points--required of the SOLGR, and not
provided by the PLGR. The TEB chairman testified that the PLGR was a
much different device than that sought by the RFP and that "moving"
from the PLGR to the SOLGR required design and development work. Tr.
at 24-28, 80. Given this record and the agency's failure to provide
any evidence demonstrating that the modifications and redesign that
would be required for the PLGR to satisfy this RFP's specifications
are minor, we cannot conclude that even if Rockwell's offered SOLGR is
a modified version of its PLGR, that Rockwell's unit is an NDI.
In sum, we find, based upon this record, no support for the Army's
determination that Rockwell's offered receiver satisfied the RFP's NDI
requirement. In fact, the only credible evidence in the record
indicates that the modifications and redesign Rockwell proposed for
its receiver to satisfy the RFP specification are significant and not
minor. Award may not properly be made to an offeror whose proposal
fails to conform to an RFP's material requirements. Mine Safety
Appliances Co.; Interspiro, Inc., B-247919.5; B-247919.6, Sept. 3,
1992, 92-2 CPD para. 150. Here, the requirement that offered receivers
qualify as NDIs is a material requirement, which the agency does not
contend no longer reflects its minimum needs; the SSA affirmed in his
hearing testimony that, "as far as I know," the NDI requirement was
still required. Tr. at 137. Accordingly, the Army could not properly
accept Rockwell's offer, which indicated that it would not satisfy the
RFP's NDI requirement, and we sustain Trimble's protest on this
basis.[8]
We recommend that the Army either terminate Rockwell's contract for
the convenience of the government and make award to Trimble, or
conduct discussions with Rockwell to provide Rockwell with the
opportunity to offer an NDI product or demonstrate that its offered
receiver satisfies the RFP's NDI requirement. If the agency chooses
to open negotiations with Rockwell, discussions should also be
conducted with Trimble, best and final offers received, and a new
source selection decision made; if Trimble is selected for award as a
result of this new source selection decision, then Rockwell's contract
should be terminated and award made to Trimble. We also recommend
that Trimble be reimbursed its costs of filing and pursuing the
protests. 4 C.F.R. sec. 21.8(d)(1) (1996). Trimble should file its
claim for costs with the agency within 90 calendar days of the date of
this decision. 4 C.F.R. sec. 21.8(f)(1).
Comptroller General
of the United States
1. Precise positioning service refers to the higher level of precision
which military GPS receivers are capable of providing relative to
commercial GPS receivers, which are designed for "standard positioning
service."
2. Trimble protests that this provision prohibited below-cost bids by
requiring offerors to demonstrate the feasibility of performing the
contract within the cost proposed. We disagree and find, as argued by
the agency, that this provision merely informed offerors that the
agency would evaluate offeror's capability and capacity to perform the
contract within the fixed prices proposed. The agency states that it
was confident from its evaluation of Rockwell's proposal that the
awardee could successfully perform the contract at its offered price;
the record does not contradict the agency's determination in this
regard.
3. Although the agency describes these communications as
clarifications, from our review of the record, these communications
appear to be discussions, which should have triggered a request for
best and final offers. See The Hotel San Diego, B-260971, July 7,
1995, 95-2 CPD para. 4.
4. Testimony was elicited from the SSA, the cost/price analyst, and
TEB chairman concerning the SSA's source selection determination, the
determination that Rockwell's offered receiver was NDI, and whether
discussions had been conducted only with Rockwell.
5. Trimble's total proposed price is actually [DELETED] percent higher
than Rockwell's price.
6. Rockwell also suggests that the RFP did not require the offer of an
NDI receiver to be compliant. This argument is belied by the RFP's
unambiguous SOW language, as acknowledged by the SSA in his hearing
testimony, in which the SSA confirmed that an offeror had to offer an
NDI receiver to be found compliant. Tr. at 95.
7. Although the TEB chairman testified that the NDI status of
Rockwell's offered SOLGR was not considered in the TEB's evaluation of
proposals, the TEB chairman offered his opinion during the hearing
that Rockwell's offered receiver was an NDI. Tr. at 76, 78. This
opinion, however, was based upon the TEB chairman's own definition of
what constitutes an NDI; he considered as an NDI "an item that can be
designed, produced using existing technologies that are--all the
pieces are basically there, you're moving from an item that exists
today to something you're going to have in the near future." Id. The
TEB chairman's definition of what qualifies as an NDI is inconsistent
with the NDI definition specified by FASA and the RFP, inasmuch as the
scope of modifications made to already produced items of supply must
be considered to ascertain if a particular product is an NDI. In any
event, as noted above, the TEB chairman's opinion and definition of
what constitutes an NDI was not provided to the SSA prior to award.
8. Trimble also challenged a number of other aspects of the
procurement, including the agency's evaluation of Rockwell's proposal,
source selection decision, and conduct of discussions only with
Rockwell. We need not address these other issues given our
recommendation to either make award to Trimble or reopen the
competition between the two firms.