BNUMBER: B-274318; B-274318.2; B-274318.3; B-274318.4
DATE: December 4, 1996
TITLE: Robbins-Gioia, Inc.
**********************************************************************
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:Robbins-Gioia, Inc.
File: B-274318; B-274318.2; B-274318.3; B-274318.4
Date:December 4, 1996
Carl J. Peckinpaugh, Esq., and Eric J. Marcotte, Esq., Winston &
Strawn, for the protester.
James J. Regan, Esq., Thomas P. Humphrey, Esq., Paul Shnitzer, Esq.,
John E. McCarthy, Jr., Esq., and Nabil Istafanous, Esq., Crowell &
Moring, and Alice M. Crook, Esq., for Lockheed Martin Federal Systems,
Inc., an intervenor.
Clarence D. Long III, Esq., and Jeffrey S. Titrud, Esq., Department of
the Air Force, 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
1. Admission of an in-house counsel to a General Accounting Office
protective order was appropriate over the objection of the contracting
agency, where the record showed that the in-house counsel did not
participate in competitive decision-making and that there was not
otherwise an unacceptable risk of inadvertent disclosure of protected
information; the agency's objection that the in-house counsel reported
to corporate officials that advise and participate in competitive
decision-making does not itself establish that the in-house counsel
advises or participates in competitive decision-making herself.
2. In a negotiated procurement for information system modernization
and integration, the contracting agency reasonably assessed the
protester's proposed immediate implementation of a distributed object
computing architecture as representing a moderate risk--potentially
causing some disruption of schedule, increase in cost, or degradation
of performance--where the agency found that protester's proposed
architecture was based upon emerging technology that was not yet fully
supported in the marketplace and which would entail a substantial
amount of custom software development.
3. Protest that the contracting agency treated the protester and the
awardee unequally in the agency's proposal risk assessment of the two
firms' proposed architectures is denied, where the protester proposed
the immediate implementation of a distributed object architecture with
a substantial amount of custom software development, which the agency
assessed as a moderate proposal risk, while the awardee proposed the
more mature distributed computing environment architecture, emphasized
the use of commercial-off-the-shelf software, and promised to evolve
into a distributed object approach, as that technology evolved, which
the agency assessed a low proposal risk.
4. Protest that the contracting agency did not conduct meaningful
discussions with the protester because the agency did not specifically
inform the protester that the agency viewed its offer to immediately
implement a distributed object computing approach as a moderate risk
is denied, where the agency conducted several rounds of written and
oral discussions that identified a number of concerns with the
protester's proposed architecture and provided the protester with
significant opportunities to explain and support its proposed
architectural approach.
5. The contracting agency appropriately considered past experience
information in its evaluation of the protester's proposal under the
development/implementation processes evaluation factor, where that
factor specifically provided for consideration of offerors' relevant
experience in system engineering, customer training, and life-cycle
management support.
6. The contracting agency properly limited its consideration under
the performance risk factor of the awardee's performance of major
system procurements to procurements that the awardee itself had
performed, as opposed to procurements performed by other divisions of
the corporation of which the awardee was a part, where the awardee and
the other divisions are separate entities within the parent
corporation, and the record establishes that the other divisions will
not be involved in the performance of the contract to be awarded.
7. Protest that the contracting agency misevaluated the protester's
performance risk is denied, where the agency appropriately considered
the satisfactory and relevant performance of the protester's proposed
subcontractors, but found that although the protester's past
performance was satisfactory its experience was on "somewhat relevant"
contracts, none of which was of the magnitude or complexity of the
contract to be awarded, and the protester had no specific experience
as a general contractor, which was the role it proposed for itself in
this procurement.
8. The contracting agency properly considered proposals submitted by
the awardee and another offeror, which were a subsidiary and division,
respectively, of a larger corporation, despite the solicitation
prohibition against offerors' submitting more than one proposal, where
the agency reasonably determined that the awardee and the other
corporate division were separate business entities, and the record
shows that the awardee did not have an unfair advantage or that the
government's interests were prejudiced.
DECISION
Robbins-Gioia, Inc. protests the award of a contract to Lockheed
Martin Federal Systems, Inc. (LMFS) under request for proposals (RFP)
No. F1620-95-R-A245, issued by the Department of the Air Force for
services supporting the agency's base level system modernization
(BLSM) of the Global Combat Support System (GCSS). Robbins-Gioia
challenges the agency's evaluation of proposals and conduct of
discussions.
We deny the protest.
BACKGROUND
The GCSS program is the second phase of an umbrella program to
incrementally modernize Department of Defense (DOD) standard
information systems, which, among other things, will provide a Common
Operating Environment (COE) for each application. These modernized
systems will integrate existing legacy systems[1] that make up DOD's
GCSS and migrate these systems to an open systems environment using
the appropriate COE. In support of this program, the RFP sought a
total systems integration contractor to modernize, integrate, evolve,
and maintain 26 functionally aligned Air Force standard base level
AISs,[2] and to develop hardware and software technologies to
establish COEs to host these modernized AISs on a variety of open
platforms. These 26 standard Air Force information systems,
consisting of nearly 9 million lines of predominantly old COBOL
software, residing on proprietary Wang and Unisys mainframe computers
and early AT&T UNIX computers, track supply, maintenance, contracting,
financial, logistics planning, police, bombs and ammunition, pilot
flying hours, and cargo load planning actions at Air Force
installations world wide. The agency's Standard Base Supply System
(SBSS) was identified as the first system to be modernized.
The RFP provided for the award of an indefinite delivery, indefinite
quantity contract with fixed-price, cost reimbursable, and labor hour
elements for a 10-year term.[3] The stated maximum contract value was
$1.2 billion. Offerors were informed that other DOD agencies or
components would be permitted under the contract to procure COE and
other commercial-off-the-shelf (COTS) components, or AIS modernization
tasks.
Technical requirements were detailed in a Technical/Management
Requirements Document, which referenced applicable specifications and
standards for contractor performance. Among other things, offerors
were informed that:
"[s]oftware should be developed only after considering
affordable, widely used COTS, GOTS [government-off-the-shelf],
NDI [nondevelopmental item] and other reusable components . . . .
When a procedural language is used, Ada is the preferred choice
for new development in support of the proposed software
engineering process."[4]
The RFP also provided that the Air Force would support an offeror's
request for a waiver of the Ada requirement where the offeror proposed
the use of a fourth generation language[5] to develop personal
computer based applications. Offerors were also informed that
existing legacy systems must remain operational until replaced Air
Force-wide, and that interfaces from legacy to modernized systems must
be maintained until the legacy systems are phased out.
The RFP provided that the procurement would be conducted in accordance
with the streamlined source selection procedures defined in Air Force
Acquisition Regulation Supplement Appendix AA, Formal Source Selection
for Major Acquisition. Award was to be made on a best value basis,
based upon an integrated assessment of the offerors' proposals for
compliance with solicitation requirements and soundness of approach
under stated specific evaluation criteria. The following
technical/management evaluation factors were identified:
1. Architecture
Assesses the performance characteristics and the Air
Force-wide
impact of the offeror's overall approach to satisfying the RFP
requirements.
2. COEs
Assesses the current and planned capability and robustness
of the development and runtime COEs, based upon the technical
capabilities described and demonstrated in an offeror's proposal.
3. Management
Assesses an offeror's capability to successfully plan,
control, and execute a large scale, complex management information
system modernization program within cost and on schedule.
4. Development/Implementation Processes
Assesses the capability of an offeror's systems engineering,
implementation, customer training, customer support, and life-cycle
management processes to develop, implement, and sustain modernized
AISs on schedule, considering affordability throughout the process and
the role of government personnel in these processes.
5. SBSS Application Approach
Assesses how well the offeror's proposed COTS/GOTS/NDI
components in conjunction with the COE and developed application
software satisfy the stated solicitation objectives and constraints.
6. Software Capability Evaluation (SCE)
Assesses an offeror's software development capabilities by
evaluating the offeror's software process improvement plan and using
the Software Engineering Institute's SCE.
Factors 1, 2, and 3 were stated to be of equal importance and higher
in priority than factors 4, 5, and 6, which were of equal importance.
Offerors were informed that
proposals would be color/adjectivally rated[6] and evaluated for
proposal and performance risk.[7]
The RFP stated that cost/price was significantly less important than
the technical/management evaluation factors and provided for various
cost/price analyses to evaluate offerors' proposed costs/prices,
including the determination of the offerors' Proposed Total Contract
Cost (PTCC) with Present Value (PV) applied, the Government Estimate
of Most Probable Cost (GEMPC), GEMPC with PV applied, and Cost Price
Realism Assessment (CPRA).
Detailed proposal preparation instructions were provided that required
the submission of six proposal volumes: (1) Executive Summary, (2)
Technical/Management, (3) Contract and Associated Information, (4)
Cost/Price Proposal, (5) SCE Questionnaire and Project Profiles, and
(6) Performance Risk Questionnaire. For each required proposal
volume, the RFP detailed the information required. The RFP further
stated:
"An [o]fferor may submit a maximum of one fully compliant
proposal in response to this solicitation. No alternate
proposals will be accepted. If an [o]fferor submits more tha[n]
one proposal, all proposals will be returned without evaluation
since the [g]overnment would have no basis upon which to
determine which of the proposals the [o]fferor desired to have
evaluated. For purposes of this solicitation, an [o]fferor is
defined as an individual, partnership, proprietorship, joint
venture, corporation, or other business entity."
The RFP also provided for a demonstration at a site to be selected by
the offeror, at which the offeror would have the opportunity to
clarify its proposed approach, capability, and design.
Proposals were received from seven offerors, including Robbins-Gioia,
Loral Federal Systems--Oswego, and Lockheed Martin Management and Data
Systems (LMMDS). During the procurement and prior to the submission
of best and final offers (BAFO), Lockheed Martin Tactical Systems,
Inc., a wholly owned subsidiary of Lockheed Martin Corporation (the
parent corporation of LMMDS) acquired, by stock purchase, Loral
Federal Systems--Oswego, which became a wholly owned subsidiary of
Lockheed Martin Tactical Systems, Inc. and changed its name to LMFS.
The Air Force provided offerors with two rounds of clarification
requests (CR) and deficiency reports (DR), attended a demonstration
with each offeror, and conducted face-to-face discussions. At the
conclusion of discussions, BAFOs were requested from the seven
offerors. LMFS's and Robbins-Gioia's BAFOs were evaluated as follows:
Adjectival/Risk Rating
LMFS Robbins-Gioia
Architecture Blue/Low[8] Blue/Moderate[9]
COE Blue/Low Blue/Low
Management Green/Low Green/Low
Processes Blue/Low Green/Moderate
SBSS Green/Moderate Green/Moderate
SCE Blue/Low Blue/Low
OVERALL Blue/Low Blue/Moderate
Technical Performance RiskLow Moderate
PTCC/PV $207.2M[10] [DELETED]
CPRA/PV $201.1M [DELETED]
Cost Performance Risk Low Low
As indicated, the difference in Robbins-Gioia's and LMFS's overall
technical/management evaluation score was primarily attributable to
Robbins-Gioia's higher risk rating under the architecture factor, to
Robbins-Gioia's lower adjectival score and higher risk rating under
the development/implementation processes factor, and to
Robbins-Gioia's moderate technical performance risk.
With regard to the architecture factor, the agency's evaluators viewed
Robbins-Gioia's proposed software architecture, which was based upon
an immediate implementation of a distributed object oriented solution,
as a strong but somewhat risky approach because, in the evaluators'
judgment, distributed object computing was still an "emerging
technology." LMFS, on the other hand, proposed to implement an
architecture based on the distributed computing environment (DCE)
model, which has been in use in commercial and federal automation
systems since the mid-1980s, and to evolve into a distributed object
architecture when and if it becomes a more stable and generally
accepted standard.
The development/implementation processes factor (for which
Robbins-Gioia's proposal was evaluated as green/acceptable with
moderate risk) evaluates an offeror's capability to develop,
implement, and maintain the modernized AISs. Robbins-Gioia proposed a
"general contractor" approach to performing the contract effort, in
which Robbins-Gioia would coordinate and manage subcontractors that
would perform the contract work. While the agency assessed as
acceptable the subcontractors' development and implementation
capabilities, it viewed Robbins-Gioia's lack of experience in managing
system engineering processes as a risk. LMFS, on the other hand, was
determined to have a proven, strong system engineering process.
Robbins-Gioia's technical performance risk was evaluated as moderate
because of its lack of directly relevant management and development
experience on contracts for work of the nature or scope of GCSS.
Although Robbins-Gioia's proposed subcontractors were found to have
performed satisfactorily on mostly relevant work, the Air Force was
concerned that Robbins-Gioia had not previously performed as a general
contractor on any directly relevant contracts of equal magnitude and
complexity as the GCSS modernization project. LMFS's technical
performance risk was evaluated as low.
Based upon an integrated assessment of the evaluation record, the
source selection authority (SSA) determined, in a detailed source
selection decision, that LMFS's proposal offered the best value to the
government. With regard to Robbins-Gioia's proposal, the SSA found
that Robbins-Gioia's proposal was less desirable than LMFS's, noting
that:
"[while Robbins-Gioia] offer[ed] to lead the program into the
21st century with a solution based on emerging distributed object
technologies and, like LMFS, was rated blue in both Architecture
and COE[,] [i]t was my conclusion that [Robbins-Gioia's] approach
was riskier than LMFS's approach due to [Robbins-Gioia's] (1)
planned immediate and extensive use of emerging technologies and
developed software in their described architecture and (2)
absence of extensive prime contractor experience in implementing
large scale software development."
Because Robbins-Gioia's proposal was lower-rated and
higher-cost/priced than LMFS's proposal and, in fact, represented the
highest evaluated cost/price of the seven offers received, the SSA
eliminated Robbins-Gioia's proposal from further consideration. After
consideration of the remaining lower-rated, lower-cost/priced offers,
the SSA concluded that LMFS's superior proposal was the most
advantageous to the government. Award was made to LMFS and this
protest followed.
ADMISSION TO PROTECTIVE ORDER
A protective order was issued pursuant to section 21.4 of our Bid
Protest Regulations, 61 Fed. Reg. 39039, 39044 (1996) (to be codified
at 4 C.F.R. sec. 21.4), which allowed the limited release of confidential
or source selection sensitive information to counsel and consultants
for Robbins-Gioia and LMFS who were admitted under the protective
order. The Air Force objected to the admission of Ms. Alice Crook, an
in-house attorney employed by Lockheed Martin Federal Systems, Inc.,
on the basis that Ms. Crook reports to the Vice President/General
Counsel of Lockheed Martin Federal Systems, who is a competitive
decision-maker. The Air Force does not assert that Ms. Crook herself
advised or participated in competitive decision-making, but contends
that "too much is at stake to admit in-house counsel who directly
report to persons who engage in competitive decision-making."
Robbins-Gioia did not object to Ms. Crook's admission under the
protective order.
In considering the propriety of granting or denying an applicant
admission to a protective order, we review each application in order
to determine whether the applicant is involved in competitive
decision-making or there is otherwise an unacceptable risk of
inadvertent disclosure of protected information should the applicant
be granted access to protected material. See McDonnell Douglas Corp.,
B-259694.2; B-259694.3, June 16, 1995, 95-2 CPD para. 51. Applicants are
neither automatically admitted because they are outside counsel nor
automatically denied access because they are in-house counsel.
Consistent with the holding in U.S. Steel Corp. v. United States, 730
F.2d 1465 (Fed. Cir. 1984), our Office has no per se rule in this
regard. Instead, in reviewing each application for admission to a
protective order, we consider and balance a variety of factors,
including the nature and sensitivity of the material to be protected,
the attorney's need for the confidential information sought in order
to adequately prepare the party's case, and whether there is
opposition to an applicant expressing legitimate concerns that the
attorney's admission would pose an unacceptable risk of inadvertent
disclosure. Magnavox Elec. Sys. Co., B-258037; B-258037.2, Dec. 8,
1994, 94-2 CPD para. 227; Akzo N.V. v. United States Int'l Trade Comm'n,
808 F.2d 1471, 1484 (Fed. Cir. 1986), cert. denied, 482 U.S. 909
(1987); cf. Mastushita Elec. Indus. Co., Ltd. v. United States, 929
F.2d 1577 (Fed. Cir. 1991); U.S. Steel Corp. v. United States, 730
F.2d 1465.
We admitted Ms. Crook to the protective order based upon our finding
that Ms. Crook was not involved in competitive decision-making and
that there was not otherwise an unacceptable risk of inadvertent
disclosure of protected information should Ms. Crook be granted access
to protected material. As noted above, it was unrebutted that Ms.
Crook herself did not participate in competitive decision-making; in
this regard, Ms. Crook stated that she was not involved in preparing
or approving proposals for government business. Furthermore, Ms.
Crook offered additional assurance by, among other things, promising
to have access to protected information only in the offices of LMFS's
outside counsel who were admitted to the protective order. While it
is true that Ms. Crook reports to Lockheed Martin Federal Systems'
General Counsel, who advises competitive decision-makers, this alone
did not demonstrate that there was an unacceptable risk of inadvertent
disclosure of protected information. Regular contact with corporate
policy-making or competitive decision-making officials does not
establish that an in-house counsel advises or participates in
competitive decision-making. Mastushita Elec. Indus. Co., Ltd. v.
United States, 929 F.2d 1577.
DISCUSSION
Architecture
Robbins-Gioia challenges the risk assessment of its proposed software
architecture. Specifically, Robbins-Gioia disagrees with the Air
Force's judgment that Robbins-Gioia's proposed distributed object
computing architecture was "emerging" and represented a moderate risk.
Robbins-Gioia states that it:
"proposed a target system architecture that was based upon the
use of distributed object technology. This type of architecture
enables the development of applications in a distributed
environment of client and server systems. The open standard
which governs the communication among objects in a distributed
environment is called the Common Object Request Broker
Architecture (CORBA). . . .[11] Robbins-Gioia proposed a
CORBA-compliant system and used the [COTS] product 'Orbix' as its
object request broker (ORB). An ORB is a software device that
provides interoperability among applications on different
machines in heterogeneous distributed environments and seamlessly
interconnects multiple object systems."
Robbins-Gioia argues that the CORBA standard and CORBA-based products
are well established and have, in fact, been embraced by the Defense
Information Systems Agency (DISA)[12] and provided to the Air Force
under other procurements. Robbins-Gioia contends that the Air Force's
view of the relative maturity of distributed object computing is based
upon the agency's reliance upon out-dated literature and that more
recent industry literature, such as The Essential Distributed Objects
Survival Guide (1996) by Robert Orfali, Dan Harkey, and Jeri Edwards,
"recognizes that the CORBA standard has become well-established."
In considering a challenge to a particular evaluation conclusion, we
examine the record to determine whether the judgment was reasonable
and in accord with the evaluation criteria listed in the solicitation.
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223. A
protester's mere disagreement with the agency's evaluation
determination does not demonstrate that the evaluation was
unreasonable. Brunswick Defense, B-255764, Mar. 30, 1994, 94-1 CPD para.
225.
The Air Force and LMFS dispute Robbins-Gioia's view that distributed
object computing technology and CORBA are so well established that the
agency's assessment of Robbins-Gioia's proposed software architecture
as representing a moderate risk was unreasonable. The Air Force and
intervenor note that the agency's moderate risk assessment was based
upon more than the fact that Robbins-Gioia's distributed object
oriented approach was based upon relatively new and emerging
technology; the agency's evaluators were also concerned with, among
other things, the complexity of Robbins-Gioia's approach; the lack of
detail provided by Robbins-Gioia to establish the credibility of its
approach; the limited amount of currently available CORBA-compliant
COTS applications software; and the need to write a substantial amount
of new software code, which Robbins-Gioia committed to write in Ada95,
a third generation language (as opposed to the newer fourth generation
language that LMFS committed itself to use).[13] Hearing Transcript
(TR) at 499-500, 531-532.[14]
We find that, despite Robbins-Gioia's attempts to characterize its
proposed CORBA-based, distributed object computing architecture as
well established, the record supports the Air Force's conclusion that
Robbins-Gioia proposed a state-of-the-art approach that entailed some
risk. Robbins-Gioia proposed a modernization and migration approach
that was based upon an immediate implementation of a distributing
computing environment using CORBA. This was an approach that
Robbins-Gioia itself characterized in its proposal, during its
demonstration, and in discussions as "state-of-the-art," "cutting
edge," "innovative," and "90s technology."
CORBA 2.0 (the version of the standard proposed by Robbins-Gioia) is
relatively new, having been promulgated by the OMG in December 1994.
As recognized in The Essential Distributed Objects Survival Guide (the
book cited by the protester), the CORBA standard is still evolving and
represents the "cutting edge of distributed object technology and
client/server middleware." Id. at 202. Although the authors of this
book admittedly are proponents for CORBA-based distributed computing,
they too acknowledge that CORBA is not fully mature--for example, the
authors note, at the time of printing, the lack of robust commercial
ORBs suitable for mission-critical client/server environments (the
authors predicted the introduction of robust ORBs from commercial
vendors sometime in 1996) and the unavailability of COTS message
oriented middleware.[15] Id. at 63-65.
Robbins-Gioia's chief engineer recognized that some elements of the
CORBA standard remained undefined and that, within the industry, there
was discussion of whether CORBA was "ready for prime time." TR at
371-377. In this regard, the chief engineer admitted that CORBA
security services such as would support the C2 level of security[16]
required for GCSS had not yet been implemented, and that there was a
limited amount of CORBA-compliant, COTS software currently available
to support GCSS functional applications. TR at 115-116, 369-370.
DISA's acceptance of the CORBA standard for DOD procurements of object
oriented computing does not, in our view, demonstrate that
Robbins-Gioia's proposed distributed object approach was so well
established that it could not be characterized as "emerging
technology" or assessed as a moderate risk. While it is true that
DISA has stated in the TAFIM that CORBA is the standard to be employed
in DOD procurements of distributed object oriented computing, the
TAFIM does not mandate the acceptance of distributed object oriented
approaches or indicate when such approaches are acceptable; rather,
TAFIM merely indicates that where object oriented approaches are used
CORBA is the DOD standard. See TR at 683 (LMFS's technical consultant
testified that the TAFIM only indicated the use of CORBA as a standard
when distributed object computing is used). Moreover, although DISA
intends to incorporate CORBA into the Defense Information
Infrastructure COE, DISA warns that CORBA product recommendations have
not yet been made and identifies, as issues for future resolution,
CORBA requirements, migration, and Ada bindings.
The emerging nature of distributed object oriented computing and the
CORBA standard is also indicated by the lack of any evidence in the
record of completed, large scale commercial or government projects
that would validate the maturity of the technology. Although
Robbins-Gioia's proposal references several large commercial projects,
and its protest identifies two other Air Force procurements in which
CORBA or a CORBA-based distributed system was being acquired, none of
these projects is close to completion and implementation. TR at
106-107.
The record also supports the reasonableness of the Air Force
evaluators' other concerns with the complexity of Robbins-Gioia's
approach and Robbins-Gioia's failure to provide sufficient details to
establish the credibility and lack of risk of its approach. For
example, the lack of available CORBA-compliant COTS application
software for Robbins-Gioia's proposed architecture and the need to
perform custom software development, using Ada95, add complexity and
risk to Robbins-Gioia's approach. In this regard, the record
establishes that Robbins-Gioia will have to do a substantial amount of
custom applications software development, for which Robbins-Gioia will
use Ada95, a third generation language. TR at 148-149, 162, 170-171,
658-659. The Air Force's chief technical evaluator and LMFS's
consultant testified that software development using a third
generation language is more complex and requires significantly more
effort than software development using a fourth generation language.
TR at 507, 655-656, 659. Robbins-Gioia has not shown otherwise.
In sum, we find the agency reasonably evaluated Robbins-Gioia's offer
to immediately implement a distributed object approach. As noted
above, the Air Force credited Robbins-Gioia's proposal for its
innovative, state-of-the-art distributed object architecture in
assessing the proposal as blue/excellent under architecture.[17]
Nevertheless, the agency was justifiably concerned that the offer of
an emerging technology, that was not yet fully supported in the
marketplace and that would require a substantial amount of custom
software development, posed some potential risk of schedule
disruption, increase in cost, or degradation of performance--that is,
a moderate risk. While Robbins-Gioia clearly disagrees with this risk
assessment, its disagreement alone does not establish that the
agency's technical judgment was unreasonable. Brunswick Defense,
supra.
Robbins-Gioia complains that it and LMFS were treated unequally by the
Air Force in the evaluation of the two offerors' proposed
architectures because LMFS also proposed the use of CORBA but received
a low risk rating. The record shows, however, that Robbins-Gioia and
LMFS did not propose similar technical approaches or architectures.
As noted above, Robbins-Gioia proposed the immediate implementation of
CORBA-based, distributed object architecture; such an approach would
entail a substantial amount of custom software development. LMFS, on
the other hand, proposed a DCE approach,[18] emphasized the use of
COTS software, and promised to evolve into a distributed object
approach using CORBA as that technology matured. TR at 515-516,
558-563, 653-658. As even the protester's chief architect
acknowledged, the DCE approach proposed by LMFS is more mature than
the distributed object technology proposed by Robbins-Gioia. TR at
217. LMFS's use of this more mature technology, allowed LMFS, in
accordance with the RFP's stated preference, to offer more COTS
software than that proposed by Robbins-Gioia under its less mature
distributed object approach.
[DELETED]
In sum, we find that Air Force did not treat Robbins-Gioia and LMFS
unequally, but had a reasonable basis for its low risk assessment of
LMFS's proposed architecture.
Robbins-Gioia also complains that the Air Force did not sufficiently
identify its risk concerns of Robbins-Gioia's proposed architecture
during discussions. The Air Force and LMFS respond that Robbins-Gioia
was reasonably apprised of the agency's concerns through a number of
CRs that identified agency concerns with the risk presented in
Robbins-Gioia's proposed architecture and during the demonstration and
face-to-face discussions, in which Robbins-Gioia had the opportunity,
in a give-and-take presentation with the agency, to establish the
desirability of its distributed object computing approach. The Air
Force and LMFS also argue that the agency was not obligated, in any
event, to specifically identify its risk assessment of Robbins-Gioia's
proposed architecture during discussions, and the Air Force contends
that more specific discussions with Robbins-Gioia might have resulted
in technical leveling.
Agencies are required to conduct meaningful discussions with all
competitive range offerors. Price Waterhouse, B-254492.2, Feb. 16,
1994, 94-1 CPD para. 168. In order for discussions to be meaningful,
contracting officials must advise offerors of deficiencies in their
proposals and afford offerors an opportunity to revise their proposals
to satisfy the government's requirements. Miltope Corp.; Aydin Corp.,
B-258554.4 et al. June 6, 1995, 95-1 CPD para. 285. This does not mean
that offerors are entitled to all-encompassing discussions or that an
agency must "spoon-feed" an offeror as to each and every item that
must be revised, added, deleted, or otherwise addressed to improve a
proposal; rather, an agency must only lead offerors into the areas of
their proposals considered deficient. SeaSpace Corp., B-252476.2,
June 14, 1993, 93-1 CPD para. 462. Nor is there any requirement that an
agency identify relative weaknesses in a proposal that is technically
acceptable, but presents a relatively less desirable approach than
others received. Id. Contracting officials must balance a number of
competing interests in selecting matters for discussions based upon
the facts of each procurement, see Federal Acquisition Regulation
(FAR) sec. 15.610 (FAC 90-31); Docusort, Inc., B-254852, Jan. 25, 1994,
94-1 CPD para. 38; thus, while agencies are required to conduct meaningful
discussions, contracting officials are admonished by the FAR to not
engage in actions that would result in technical leveling, technical
transfusion, or auctions. See FAR sec. 15.610(d), (e).
We find here that the Air Force conducted legally sufficient
discussions with Robbins-Gioia concerning its proposed architecture.
It is true that the Air Force did not specifically notify
Robbins-Gioia during discussions that the agency viewed the
protester's proposed architecture as being based upon "emerging
technology" or that the agency assessed the protester's architecture
as representing a moderate proposal risk. Nevertheless, the written
discussions reasonably apprised Robbins-Gioia that the agency had
numerous concerns with the risks attendant in its proposed
architecture, including how Robbins-Gioia would provide the required
C2 level of security; how it would perform custom software development
with Ada95 to support its distributed object approach; how its
architecture would be implemented on "today's hardware and software
resources" and what hardware requirements would be associated with its
architecture approach; what resource impacts would result from
parallel operation of modernized AISs and legacy systems; and the lack
of specificity provided for its SBSS solution. In addition, the
protester had the opportunity in its face-to-face discussions for a
detailed back-and-forth discussion of its proposed architecture. TR
at 271, 289-290, 487-495. These discussions touched upon the software
applications Robbins-Gioia proposed to provide and clarified that
these applications would be developed using Ada95, upon how
Robbins-Gioia intended to satisfy the RFP security requirements, and
upon whether Robbins-Gioia had done any modeling or simulations to
support its proposed approach. Id. Under the circumstances, even
though Robbins-Gioia was not specifically informed that the agency
viewed its overall CORBA-based approach as somewhat risky, we find
that taken as a whole the Air Force discussions reasonably led
Robbins-Gioia into the areas of its proposed architecture that were of
concern to the agency and required amplification, and should have
reasonably informed Robbins-Gioia that its proposed architecture was
seen as having the potential for causing schedule disruption, increase
in cost, or degradation of performance.
Moreover, even assuming the Air Force was required to more
specifically identify its risk assessment of Robbins-Gioia's proposed
architecture to the protester, Robbins-Gioia was not prejudiced by the
agency's failure to do so. The record is clear that if Robbins-Gioia
had been informed during discussions that its proposed architectural
approach was considered excellent but moderate risk, the protester
would then have attempted to persuade the agency that its distributed
object approach was not risky.[19] TR at 380-381. Furthermore,
despite numerous lengthy submissions disagreeing with the agency's
risk assessment of its proposed architecture, Robbins-Gioia has yet to
demonstrate that its offered approach was not reasonably assessed to
be a moderate risk; thus, we find no possibility that Robbins-Gioia
could have offered additional information or argument that would have
improved the competitive standing of its proposal in response to
additional discussions. See Microeconomic Applications, Inc.,
B-258633.2, Feb. 14, 1995, 95-1 CPD para. 82.
Development/Implementation Processes
Robbins-Gioia also challenges the Air Force's assessment of its
proposal as moderate risk under the development/implementation
processes factor. Specifically, Robbins-Gioia argues that the agency
unreasonably considered past performance information--that is, that
Robbins-Gioia had no directly relevant past experience supporting its
general contractor approach--in its assessment of Robbins-Gioia's
proposal risk under this factor.
The RFP provided that the evaluation of the development/implementation
processes factor would be based on an assessment "of the effective and
credible processes and approach as described and demonstrated in the
[o]fferor's proposal" for systems engineering, customer training, and
life-cycle management support. "Effective and credible process" is
defined by the RFP as:
"an engineering, administrative, or managerial process currently
in use that is measured, continuously improved and proven to
produce a desired result." [Emphasis added.]
In this regard, the RFP instructed offerors that:
"As a minimum, the [o]fferor shall describe their effective and
credible processes, approach, and relevant experience. . . ."
[Emphasis added.]
While it is true, as noted by the protester, that Robbins-Gioia's
proposal was evaluated as containing a number of strengths under the
development/implementation processes factor, these evaluated strengths
were attributable to the development and implementation capabilities
demonstrated by Robbins-Gioia's proposed subcontractors.
Robbins-Gioia has not attempted to rebut the Air Force's view that
Robbins-Gioia had limited systems engineering experience and lacked
experience overseeing these processes as a general contractor.
Accordingly, we conclude that the agency had a reasonable basis for
its determination that Robbins-Gioia's limited relevant experience and
lack of experience overseeing systems engineering processes could
potentially cause some disruption in schedule, increase in cost, or
degradation of performance, despite the strengths offered by
Robbins-Gioia's subcontractors.
Performance Risk
Robbins-Gioia also protests the Air Force's assessment of LMFS's
performance risk as low. Specifically, Robbins-Gioia argues that the
agency did not assess LMFS's allegedly poor past performance on three
large programs: the Department of the Army's Sustaining Base
Information System (SBIS); the Federal Aviation Administration's (FAA)
Advanced Automation System (AAS); and DOD's Defense Message System
(DMS). Robbins-Gioia asserts that LMFS's performance risk should have
been assessed as high.
The Air Force and LMFS respond that only one of these three programs
(the SBIS program) was performed by the LMFS division (LMFS-Oswego,
New York) that will be performing the GCSS contract and that, pursuant
to the RFP, only LMFS's performance of the SBIS program, as well as
its performance under other relevant contracts, was evaluated. The
Air Force and LMFS state that the contract for the DMS program was
awarded to and performed by LMFS-Manassas, Virginia, and the contract
for the AAS program was awarded to and performed by LMFS-Rockville,
Maryland. LMFS-Manassas and LMFS-Rockville are separate divisions
within LMFS, which will have nothing to do with LMFS-Oswego's
performance of the GCSS contract. The agency also states that it
assessed LMFS-Oswego's performance of SBIS as low risk after
considering the comments of both Army contracting officials and LMFS,
which explained that 75 percent of the problems that occurred during
contract performance of this program were the responsibility of the
government.
The RFP required offerors to complete a performance risk questionnaire
to aid the Air Force in its evaluation of the offerors' performance
risk, which was stated to measure the probability of an offeror's
successful performance based on the offeror's demonstrated past and
present experience. Offerors were instructed to:
"complete the Performance Risk Questionnaire attachment for all
active or completed contracts executed within the last 3 years
that the [o]fferor considers relevant in demonstrating its
ability to perform the proposed effort. . . . This information
may include data on efforts performed by other divisions,
corporate management, critical subcontractors, or teaming
contractors, if such resources will be used or significantly
influence the performance of the proposed effort. . . . The
[o]fferor shall not include performance data from other divisions
or corporate management entities not planned for direct
involvement during the execution of the GCSS-AF (BLSM II)
program." [Emphasis added.]
We find from this record that the Air Force's determination to not
consider LMFS's (then, Loral's) performance under the AAS and DMS
programs was reasonably based. First, the record shows that LMFS,
which is incorporated in the State of Delaware, consists of number of
separate offices, each of which is headed by a separate president,
vice-presidents, and general counsel, and that LMFS-Oswego,
LMFS-Manassas, and LMFS-Rockville function as separate operating
units, receiving and performing their own contracts. This fact was
recognized in the Name Change Agreement, executed on July 1, 1996, by
Lockheed Martin Corporation and the Defense Contract Management Center
that assigned individual Commercial and Government Entity Codes for
each of these LMFS offices.
The record also shows that LMFS-Manassas and LMFS-Rockville will not
be involved in performance of the GCSS contract. In this regard, the
RFP required offerors to propose labor rates in given labor categories
for all prime and subcontractor organizations the offeror planned to
use in contract performance. LMFS's cost/price proposal identified no
hours for the LMFS-Manassas and LMFS-Rockville offices. Because
LMFS-Manassas and LMFS-Rockville have no planned direct involvement in
the performance of the GCSS contract, the Air Force reasonably did not
evaluate these divisions' prior performance experience, consistent
with the RFP's instructions.[20]
We also find reasonable the Air Force's low risk assessment of LMFS's
past performance on the SBIS program. In accordance with the RFP
instructions, LMFS disclosed its performance of and problems under the
SBIS program--which involved a large scale modernization of the Army's
legacy combat support systems. In response to discussions concerning
its performance of the SBIS contract, LMFS informed the Air Force that
its schedule slippage and over-budget situation were related to
significant increases and changes in the government's requirements.
The Air Force contacted Army officials involved in the SBIS program,
including the SBIS program managers and contracting officer. Based
upon discussions with these Army officials, the Air Force determined
that 75 percent of LMFS's performance problems and cost overruns under
the SBIS program were attributable to the government and not LMFS.
From the information the Air Force received from various contract
respondents, including Army SBIS officials, the agency determined that
LMFS was a "strong engineering software company" whose past record
indicated its capability to provide an acceptable product for the GCSS
program. Robbins-Gioia has not shown this assessment to be
unreasonable.
Robbins-Gioia also challenges the Air Force's assessment of
Robbins-Gioia's performance risk as moderate risk, arguing that the
agency did not evaluate the experience offered by Robbins-Gioia's
subcontractors or properly consider Robbins-Gioia's own experience.
Robbins-Gioia's arguments are refuted by the record. The agency's
performance risk evaluation documentation, including the Performance
Risk Analysis Group Final Report, shows that the Air Force did
consider Robbins-Gioia's and its subcontractors' experience in
assessing Robbins-Gioia's proposal under this factor. Robbins-Gioia's
subcontractors' performance risk was assessed as low risk, on the
basis of the subcontractors' successful performance of contracts that
were judged to be relevant and very relevant. Robbins-Gioia's
performance risk was judged to be moderate risk because although
Robbins-Gioia's performance was found to be satisfactory, its
experience was on "somewhat relevant" contracts, none of which were of
the magnitude or complexity of the GCSS contract, and Robbins-Gioia
had no specific experience as a general contractor (although, as a
subcontractor, it had performed "program control-like" tasks).
Multiple Proposals
Robbins-Gioia also protests that LMFS's and LMMDS's proposals should
have been rejected because the RFP prohibited the submission of more
than one proposal by an offeror. Robbins-Gioia argues that the
submission of proposals by LMFS and LMMDS, which are a subsidiary and
division, respectively, of Lockheed Martin Corporation, was tantamount
to receiving multiple proposals from Lockheed Martin. (Robbins-Gioia
states, however, that it "is not alleging collusion" between LMFS and
LMMDS.)
The Air Force and LMFS respond that LMFS and LMMDS are separate
corporate entities. The record shows that LMFS is a Delaware
corporation, whose stock is owned by Lockheed Martin Tactical Systems,
Inc., a New York corporation, which is wholly owned by Lockheed Martin
Corporation, a Maryland corporation, and that LMMDS is a separate
operating division within Lockheed Martin Corporation. The agency and
intervenor state that while the operative RFP provision limited each
offeror to one proposal, it defined an offeror broadly as "an
individual, partnership, proprietorship, joint venture, corporation,
or other business entity," and that under this definition, LMFS and
LMMDS are separate "business entities" entitled to submit their own
proposals. The Air Force and intervenor also state that LMFS and
LMMDS prepared their proposals on an independent basis, sharing no
proposal information with each other.
We agree with the Air Force and LMFS that the RFP did not prohibit the
submission of independent offers by affiliated offerors, such as LMFS
and LMMDS. As a general rule, contracting agencies may accept bids
and offers from affiliated firms, unless doing so would be prejudicial
to the interests of the government or would give the affiliated
offerors an unfair advantage over other offerors. District Moving &
Storage, Inc; Guardian Storage, Inc.; and Quality Transp. Servs.,
Inc., B-272070, Aug. 9, 1996, 96-2 CPD para. 60. Here, the plain language
of the RFP permits the submission of separate proposals by separate
business entities, which could reasonably be said to include separate
corporate subsidiaries or divisions that operate as individual,
autonomous business units. Moreover, Robbins-Gioia has not shown that
LMFS or LMMDS had an unfair advantage, or that the Air Force's
acceptance of proposals from LMFS and LMMDS was prejudicial to the
interests of the government.
The protest is denied.[21]
Comptroller General
of the United States
1. A "legacy system" is defined by the RFP as "[e]xisting operational
information systems maintained and modified using software engineering
techniques and methods on [COEs] that pre-date the GCSS-AF (BLSM II)
COE and respective Automated Information Systems (AIS) to be
modernized."
2. The RFP defined an AIS to be an "[a]ggregation of software, control
language, data structures, and user interface that support a
functional activity."
3. Maintenance services could be ordered for 15 years.
4. Ada is a standard high-level programming language specified by the
DOD.
5. Fourth generation languages are specifically designed to manipulate
data records in certain kinds of databases using English-like or
natural language statements.
6. Proposals could be evaluated under each evaluation factor as
either: blue/excellent; green/acceptable; yellow/marginal; or
red/unacceptable.
7. The RFP provided that "proposal risk" would assess the risk
associated with the offeror's approach as it relates to accomplishing
the requirements of the solicitation, and that "performance risk"
would assess the probability of the offeror successfully accomplishing
the proposed effort based upon the offeror's demonstrated present and
past performance. Risk was assessed as either low, moderate, or high.
8."Low risk" was defined by the RFP as:
"Has little potential to cause disruption of schedule,
increase in cost, or degradation of performance. Normal
[o]fferor effort and normal [g]overnment monitoring will
probably be able to overcome difficulties."
9."Moderate risk" was defined by the RFP as:
"Can potentially cause some disruption of schedule,
increase in cost, or degradation of performance. However,
special [o]fferor emphasis and close [g]overnment
monitoring will probably be able to overcome
difficulties."
10."M" means a million.
11. CORBA is a standard for distributed object computing that was
developed by the Object Management Group (OMG), a consortium including
information system vendors, software developers, and end users.
Founded in 1989, the OMG promotes the theory and practice of object
oriented technology in software development. The CORBA: Architecture
and Specification, Revision 2.0, July 1995, can be viewed on Internet
at http://www.omg.org/corba2.
12. DISA is responsible for information technology within the DOD and
publishes the Technical Architecture Framework for Information
Management (TAFIM) to guide the development of architectures that
satisfy requirements across missions, functional areas, and functional
activities. The TAFIM can be accessed at DISA's website on the
Internet at http://www.itsi.disa.mil/cfs/tafim.html.
13. Ada was only extended to support object oriented approaches in
1995.
14. A hearing was conducted to elicit testimony from the agency's
chief technical evaluator, Robbins-Gioia's chief engineer,
Robbins-Gioia's chief architect, and Robbins-Gioia's and LMFS's
technical consultants, concerning the agency's evaluation of the
firms' proposed software architectures and the agency's conduct of
discussions.
15. Message oriented middleware provides for asynchronous message
queues on clients and servers, allowing clients and servers to
function at their own designated times and speeds without necessarily
being simultaneously active.
16. The RFP required security solutions to prevent unauthorized
alteration of, or access to, information processed by each modernized
system. A C2 level of security, as defined by DOD in its Trusted
Computer System Evaluation Criteria, DOD Publication No.
CSC-STD-001-83, provides both discretionary (need-to-know) protection
and controlled access.
17. The Air Force considered Robbins-Gioia CORBA-based approach to be
the "distinguishing feature of [its] proposal" and "very exciting and
where the field was going." TR at 463, 476, 496.
18. Robbins-Gioia also complained that the Air Force did not consider
Robbins-Gioia's offer to use DCE in conjunction with the protester's
distributed object computing approach. The record shows that the
agency did reasonably assess this aspect of Robbins-Gioia's proposal,
but correctly noted that Robbins-Gioia's approach was primarily based
upon an immediate implementation of a CORBA-based, distributed object
computing model.
19. The protester asserts that if it had been unable to convince the
Air Force that its proposed architectural approach was not a moderate
risk, it would have radically altered its approach. We find it
implausible on this record that the protester would have radically
altered its proposed approach, for which it was evaluated to be
blue/excellent, merely because the agency was concerned that its
approach entailed some potential risk. Not only would such a change
in the protester's technical approach entail significant proposal
revision, but Robbins-Gioia's chief architect testified that he would
resign prior to being associated with an approach that was not based
upon distributed object computing and CORBA. TR at 252-253.
20. In its comments, Robbins-Gioia also asserted that LMFS poorly
performed the Global Transportation Network (GTN) program. This
program was not identified by Robbins-Gioia in its protest as a basis
for its challenge to the Air Force's assessment of LMFS's past
performance. Our Bid Protest Regulations do not contemplate the
unwarranted piecemeal presentation of protests issues. Armstrong
Motorcycles Ltd., B-238436; B-238436.2, June 5, 1990, 90-1 CPD para. 531.
In any event, the record establishes that the GTN program was not
performed by LMFS-Oswego and therefore was appropriately not
considered by the Air Force in its assessment of LMFS's performance
risk.
21. Robbins-Gioia also protested a number of other aspects of this
procurement, including the agency's evaluation of Robbins-Gioia's and
LMFS's proposed cost/price. Because the agency responded in detail in
its report to each of Robbins-Gioia's protest allegations, and Robbins
did not address the agency's response to these allegations in its
comments, we find these other protest allegations have been abandoned.
TM Sys., Inc., B-228220, Dec. 10, 1987, 87-2 CPD para. 573.