BNUMBER: B-274944.2
DATE: February 25, 1997
TITLE: Dynalantic Corporation
**********************************************************************
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:Dynalantic Corporation
File: B-274944.2
Date:February 25, 1997
John S. Pachter, Esq., Jonathan D. Shaffer, Esq., and Christina M.
Pirrello, Esq., Smith, Pachter, McWhorter & D'Ambrosio, P.L.C., for
the protester.
Thomas A. Eff, Esq., for Marine Safety International, the intervenor.
Brian F. Zeck, Esq., Kathy B. Cowley, Esq., and Eric A. Lile, Esq.,
Department of the Navy, for the agency.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Exclusion of proposal from the competitive range without discussions,
thereby leaving a competitive range of one, is not reasonable where:
(1) the deficiencies cited are minor in relation to the scope of work
and the revisions necessary to correct them; and (2) excluded
offeror's price is [deleted] million lower than sole remaining
offeror's.
DECISION
Dynalantic Corporation protests the award of a contract to Marine
Safety International (MSI) under request for proposals (RFP) No.
N00600-96-R-0749, issued by the Department of the Navy for ship
handling simulation services. Dynalantic contends that it was
improperly excluded from the competitive range without discussions
based on an unreasonable technical evaluation.
We sustain the protest.
BACKGROUND
The RFP was issued on February 7, 1996 and contemplated the award of
an indefinite-quantity fixed-price contract for a base year and 9
option years to the offeror whose proposal provided the best value to
the government. The solicitation required offerors to submit
technical proposals organized according to the following technical
evaluation factors, which were listed in the RFP in descending order
of importance: Technical Approach; Personnel; and Management Plan.[1]
According to the RFP's statement of work (SOW), offerors were to
construct a facility to house the ship handling simulator complex;
install and configure the simulator equipment and training stations;
provide all personnel and technical services necessary to run the ship
handling simulator complex for a period of up to 10 years; and remove
the complex at the conclusion of contract performance.
For their price proposals, offerors were directed to complete and
submit the fixed-price schedule set forth at section B, which required
unit prices for estimated quantities of 3,360, 4,300, and 5,000 hours
per contract year. In this regard, the pricing schedule required
offerors to propose one comprehensive hourly rate for performing any
hour of required service. Cost or price was approximately equal in
importance to the combination of all other evaluation factors.
Several amendments were issued, and a pre-proposal conference and site
visit were conducted on February 23, 1996. By the May 23 closing
date, two offers were received--from Dynalantic and MSI. On June 11,
a three-member technical evaluation panel (TEP) completed its
evaluation of the offerors' technical proposals and forwarded a
consensus evaluation to the contract specialist--who was the cognizant
contracting official for this procurement--which rated Dynalantic's
and MSI's proposals as follows:
Factor Dynalantic MSI
Technical Approach Unacceptable Outstanding
Personnel Better Outstanding
Management Plan Unacceptable Outstanding
Overall Rating Unacceptable Outstanding
The contract specialist briefly reviewed Dynalantic's submitted
pricing schedule and determined that Dynalantic's proposed pricing
exceeded the Navy's available funding; Dynalantic had proposed a total
price of approximately [deleted] million. Based on the TEP's
"unacceptable" rating, the contract specialist excluded Dynalantic's
proposal from the competitive range, leaving MSI as the sole
competitor.
MSI's proposed pricing strategy also exceeded the Navy's available
funding; MSI had proposed a total price of approximately [deleted]
million. Consequently, the contract specialist conducted several
rounds of discussions with MSI--which ultimately resulted in the
agency's reducing the minimum hours required by the solicitation. On
September 19, the Navy awarded the contract to MSI for approximately
[deleted] million. On October 1, pursuant to Federal Acquisition
Regulation (FAR) sec. 15.1004, the Navy provided a debriefing to
Dynalantic. On October 7, Dynalantic filed this protest; contract
performance has been continued by the Navy under a "best interest"
justification. 31 U.S.C. sec. 3553(d)(3)(C)(i)(I) (1994).
PARTIES' POSITIONS
The RFP set forth a five-tier adjectival scoring system which was to
be used to evaluate offerors' technical proposals: Outstanding,
Better, Acceptable, Marginal, and Unacceptable. Of significance to
this protest, the RFP specified use of the "unacceptable" rating
where:
"the offeror's technical proposal has many deficiencies and/or
gross omissions: Failure to understand much of the scope of work
necessary to perform the required tasks; failure to provide a
reasonable, logical approach to fulfilling much of the
[g]overnment's requirements; failure to meet many personnel
requirements of the solicitation. (When applying this adjective
to the technical proposal as a whole, the technical proposal must
be so unacceptable that it would have to be completely revised to
attempt to make it other than unacceptable.)" (Emphasis added.)
The Navy has identified several alleged deficiencies that it argues
would require a major revision of Dynalantic's technical proposal in
order to make the proposal marginally acceptable. According to the
Navy, "gross omission of information on building and grounds"; the
protester's proposed use of an "excessive" quality control panel; and
the failure to propose adequate staffing warranted rating Dynalantic's
proposal technically unacceptable.
Dynalantic contends that the deficiencies cited by the Navy were
either patently unreasonable or minor and correctable. In light of
the Navy's evaluated strengths in Dynalantic's proposal--including
"state of the art technology," "more realism than required," "Better"
personnel, and a "strong start-up team"--Dynalantic argues that its
proposal was sufficiently meritorious to be included in the
competitive range, and that the Navy could have realized potential
savings of approximately [deleted] million by holding discussions with
the protester.
ANALYSIS
The Competition in Contracting Act (CICA) of 1984 requires that if an
agency conducts discussions, it do so with all responsible offerors
whose offers are in the competitive range. 10 U.S.C. sec.
2305(b)(4)(A)(i) (1994). The FAR provides that the competitive range
must include all proposals that have a reasonable chance of being
selected for award and that any doubt as to whether a proposal is in
the competitive range should be resolved by inclusion. FAR sec.
15.609(a) (FAC 90-31).
There is a tension between the necessarily broad discretion of an
agency, acting through the contract specialist, to determine what
proposals are realistically competitive, and the mandate of the FAR
that, when there is doubt, the questionable proposal should be
included. The question posed by the FAR, consistent with the full and
open competition requirement of CICA, is not whether a reasonable
contract specialist might under the circumstances prefer a competitive
range of one, but whether the excluded competitors have a reasonable
chance of being selected after the opportunity for improvement. Birch
& Davis Int'l, Inc. v. Christopher, 4 F.3d 970, 973-974 (Fed. Cir.
1993).
The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of
the procuring agency and in considering an agency's evaluation of
proposals and subsequent competitive range determination we will not
evaluate the proposals anew in order to make our own determinations as
to their acceptability or relative merits. Beneco Enterprises, Inc.,
70 Comp. Gen. 574 (1991), 91-1 CPD para. 595. However, we will examine
the record to determine whether the agency's evaluation was fair,
reasonable and consistent with the evaluation criteria, and in
particular, consider whether the documentation and analysis supporting
the agency's technical conclusions are supported and rationally
related to the stated evaluation factors, as required by FAR sec.
15.612(d)(2) (FAC 90-32). Programmatics, Inc.; Telesynetics Corp.,
B-228916.2; B-228916.3, Jan. 14, 1988, 88-1 CPD para. 35.
In this case, as explained below, we find that Dynalantic's proposal
was unreasonably evaluated as unacceptable, and further conclude that
Dynalantic's proposal was improperly excluded from the competitive
range.
Facility Deficiencies
As noted above, the RFP required offerors to construct the facility
which would house the ship handling simulator training stations. The
ship handling simulator complex was to be designed with a "Blue Side"
and "Gold Side"; each side was required to house a ship handling
simulator training station comprised of a full mission bridge
simulator (360 degree visual display), radar room and bridge wing
simulator (225 degree visual display), and two 12-person learning
feedback centers. Each learning feedback center was to be used on a
stand-alone basis with its adjacent simulator or, by means of
removable wall panels, configured with the other learning feedback
centers into a large auditorium space. The solicitation also required
each simulator's computer operator station to be located in the
associated learning feedback center.
Despite high evaluation ratings for most of Dynalantic's proposed
equipment,[2] the TEP concluded that Dynalantic's proposal was
unacceptable under the Technical Approach factor because of "gross
omissions" regarding Dynalantic's proposed facility. In this regard,
for the facility portion of the proposal--which was to be included in
the Technical Approach discussion--the solicitation directed offerors
to include a "[b]uilding picture/drawing/rendering, description and
plan, and work intended on surroundings, including walkways, planted
areas (if any) and parking area."
According to the TEP, Dynalantic's proposal failed to provide
"adequate information or description to evaluate" its proposed
facility; the TEP reported that because of these deficiencies, the TEP
was unable to evaluate the facility's "utility within the context of
exterior appearance." The TEP stated that the only illustration of
Dynalantic's proposed building--a 1-inch by 3-inch rectangular
picture--was blurry, and indicated the use of a red color on the
building exterior that intensified the Navy's aesthetic concerns about
the facility's appearance.
The TEP also reported that based on Dynalantic's use of the term
"renovation" in one of its construction schedules, the TEP concluded
that Dynalantic misunderstood the facility requirement--and that the
construction schedule's references to "renovation" indicated the
contractor's intent to renovate an existing government building,
instead of constructing a new building as required by the RFP.
Finally, because Dynalantic's facility diagram depicted [deleted] and
did not otherwise show removable panels--or the location of the
computer operator stations--the TEP determined that Dynalantic's
facility description was grossly deficient.
The TEP's conclusions regarding Dynalantic's proposed facility are not
supported by the record. First, despite the TEP's claims of
inadequate detail, our review of Dynalantic's proposal shows
approximately 11 pages of facility information including: a
dimensional "plan view" and "elevation view" of both the full mission
bridge simulator and bridge wing simulator; a diagram of the ship
handling simulator complex layout; two detailed construction
schedules; and a small computer-generated picture of the proposed
entrance to its facility--indicating a red brick rectangular building
with five window fronts, parking spaces, and basic landscaping.
Dynalantic's proposal also includes several paragraphs of narrative
description, indicating that Dynalantic will subcontract the actual
construction portion to an experienced local government contractor,
and that:
"The building for [the Navy's Ship Handling Complex] will be
erected on the site provided by the government, located on the
Naval Station, Norfolk, Virginia, at the Surface Ship and
Submarine Pier area off Hampton Blvd. Dynalantic will, at its
own expense, design, erect, provide, maintain and be responsible
for the building, utilities, ship handling simulator systems,
grounds immediately surrounding and made available for the
complex, and parking areas."
Although the Navy correctly points out that Dynalantic's proposal did
not include certified architectural renditions of its proposed
facility or a schematic layout of the facility's landscaping and
parking area, the RFP did not require this level of detail. In this
regard, the Navy concedes that the technical focus of this requirement
is for simulator equipment and support services. Moreover, the Navy
admits that the required facility construction does "not pose a
significant challenge"; in fact, the RFP specifically described "a
steel pre-fabricated building, on a concrete slab, sheathed with an
aesthetic siding" as an example of a suitable facility for this
effort.
A review of Dynalantic's construction schedule confirms that this is
exactly what the protester proposed. While the TEP contends that
Dynalantic's use of the term "renovation" called into question the
contractor's understanding of the requirement, we think the only
reasonable interpretation of the "renovation" reference--taken in
context with the proposal narrative--is that Dynalantic would
configure the interior of the facility constructed by its
subcontractor to accommodate its proposed simulator complex layout.
Although Dynalantic's facility diagram does not depict removable
panels or the computer operator station locations, as pointed out by
Dynalantic, its proposal narrative specifically states that its
learning centers "[c]an be opened such that all four combined serve as
[an] auditorium" and that each computer operator station "is located
in a learning feedback center."[3] In this regard, although the TEP
downgraded the protester's proposal for [deleted].
Given the amount of facility detail set forth in Dynalantic's
proposal, we think the Navy's reliance on the protester's "blurry"
picture as a basis for downgrading Dynalantic to an unacceptable
rating is unreasonable. To the extent the TEP downgraded Dynalantic's
proposed facility based on the picture's depiction of a "red"
exterior, we find this unreasonable because the RFP specifically
required the simulator complex facility to convey a "primarily red
brick appearance." In sum, we find no basis in the record to support
the TEP's conclusion that Dynalantic's proposal contained "gross
omissions" regarding its proposed facility.
Based on the TEP's facility evaluation, the TEP determined that
Dynalantic did not understand this requirement, and therefore
evaluated the protester's proposal as unacceptable under the Technical
Approach factor.[4] We find this conclusion unreasonable. First, as
discussed above, it appears from the record that Dynalantic's drawings
and descriptive narrative regarding its proposed facility were more
than sufficient to convey Dynalantic's intent to construct a
20,000-square foot red exterior prefabricated rectangular building as
well as its proposed configuration of the simulator training complex.
Clearly, as indicated above, Dynalantic understood that it was to
build and configure the ship handling simulator complex facility; to
the extent the TEP desired additional detail such [deleted] this could
have been readily requested and provided in discussions.
The record also shows that the TEP awarded high technical ratings for
most of Dynalantic's proposed simulator equipment, and that the TEP
described Dynalantic's proposed image generator and related simulator
equipment items as "exceeding" the RFP's technical requirements, and
providing "more realism than required." At the hearing on the
protest, the TEP chairman testified that Dynalantic clearly understood
the installation, technology, and operation of the simulator training
equipment. Under these circumstances, we agree with Dynalantic that
for the Technical Approach factor its proposal should have been rated
at least "marginally acceptable."
Management/Staffing Deficiencies
The RFP required offerors to propose enough personnel to provide at
least four simultaneous 20-hour ship handling simulator training
sessions per week and to provide an organization plan ensuring quality
management and monitoring of the overall ship handling simulator
training mission. Based on two deficiencies in the "Management and
Staffing Plan" section of Dynalantic's technical proposal, the TEP
found Dynalantic's proposal unacceptable under the Management Plan
evaluation factor.
First, the TEP questioned whether Dynalantic intended to provide four
full-time facilitators--who were required by the RFP in order to offer
four simultaneous 20-hour training sessions per week. Although
Dynalantic's proposal included resumes and full-time employment
commitments for four facilitators, identified these personnel as
"compris[ing] the full time instructional staff" at the complex, and
stated that "facilitator/instructors will be scheduled as needed to
satisfy the custom ship visit plan," Dynalantic's proposal also
described its full-time staff as including "two facilitators." The
TEP also determined Dynalantic's proposal was unacceptably deficient
under the Management Plan evaluation factor because the TEP concluded
that Dynalantic had proposed "[e]xcessive procedures related to
quality control" which imposed "unacceptable subjective evaluation by
non-Navy personnel."
In its protest, Dynalantic does not dispute the TEP's concerns
regarding its proposed management plan. Dynalantic admits that it
stated, inadvertently, that its staff included "two" full-time
facilitators instead of the requisite "four," and concedes that the
TEP may have misunderstood the purpose of its proposed quality control
team--which was offered as an additional set of personnel, to be used
in addition to the key facilitators and personnel running the
simulator complex.
Instead, the basis for Dynalantic's challenge to the TEP's Management
Proposal evaluation lies in its disagreement with the weight the TEP
gave the above-referenced deficiencies. Dynalantic argues that the
identified deficiencies are akin to informational deficiencies which
could have been clarified easily without a major revision to its
proposal, and, consequently, the Management Approach section of its
proposal should have been rated "marginal" instead of unacceptable.
We agree.
As argued by Dynalantic, simply changing one word in its
proposal---e.g., replacing the word "two" with the word "four"--would
have eliminated any ambiguity regarding Dynalantic's full-time
facilitator staffing intentions. As noted above, Dynalantic's
proposal included resumes for four facilitators; under the Personnel
factor, one facilitator received an "outstanding" rating, one
facilitator was evaluated as "better," and the remaining two
facilitators were rated "acceptable." Even if we conclude (as urged
by the TEP chairman) that Dynalantic either "misunderstood" the Navy's
requirement for four full-time facilitators, or otherwise proposed an
unacceptable technical solution of two full-time facilitators, given
Dynalantic's inclusion of four facilitator resumes and corresponding
employment commitments in its proposal, we think that any ambiguity in
this area could have been remedied without a substantial proposal
rewrite.
With respect to Dynalantic's proposed quality control team, we think
the TEP's conclusion that this "deficiency" constituted a fatal flaw
in Dynalantic's proposed Management Approach is similarly
unreasonable. First, contrary to the TEP's conclusion, Dynalantic did
not propose a "non-Navy" panel; the protester's proposal specifically
stated that its "Quality Action Team" (QAT) would include and be
composed of "invited representatives" from "NAVSURFLANT [the requiring
Navy activity for this procurement]."
In its proposal, Dynalantic described its QAT in part by stating that
"Dynalantic ha[d] priced their [ship handling complex] services to the
Navy based on some 5,000 man-hours devoted to monitoring, enforcing,
and improving the quality of the shiphandling [sic] training." The
TEP chairman testified that in addition to concerns about a non-Navy
panel overseeing the Navy's training performance, the agency did not
want to bear the expense of Dynalantic's proposed QAT. These concerns
could have been readily addressed and corrected through discussions.
First, despite the TEP's interpretation to the contrary, our review of
Dynalantic's proposal supports the protester's contention that its
proposed QAT was not intended to "critique" the Navy's ship officers
or impose a burden on Navy personnel, but rather was intended to
provide a secondary support staff whose sole task would be to "provide
follow-up and ensure the Navy's full satisfaction" with the simulator
training complex and Dynalantic's key personnel (e.g., the
facilitators) and technical support. The record shows that the
[deleted].
In any event, the solicitation did not specifically require
contractors to propose a quality control team; instead, the RFP simply
required offerors to include "the proposed lines of responsibility,
authority, and communication through which the task will be managed,
and the procedure to be taken to insure quality control and cost
control." Since Dynalantic's proposal otherwise explained its project
organization and staffing approach,[5] since its proposed support team
was rated "Better" by the TEP, and since a specific quality control
team was not required, we think Dynalantic reasonably could have
alleviated the TEP's concerns without a substantial proposal
rewrite--for example, [deleted]. In sum, we agree with the protester
that the facilitator and QAT deficiencies did not reasonably warrant
the "unacceptable" rating awarded by the TEP for the Management Plan
factor.
Totality of Marginal Deficiencies
In addition to the "unacceptable" deficiencies discussed above, the
Navy identified several other areas of Dynalantic's proposal which it
evaluated as "marginal." The Navy argues that even if we determine
that the above-referenced Technical Approach and Management Plan
deficiencies should have resulted in a rating of "marginal" instead of
"unacceptable" under those factors, the totality of the "marginal"
deficiencies in Dynalantic's proposal--combined with the deficiencies
discussed above--renders the protester's proposal technically
unacceptable and warrants its exclusion from the competitive range.
Relying on our decision in Rice Servs., Ltd., 68 Comp. Gen. 112
(1988), 88-2 CPD para. 514, the Navy argues that collectively considered
the "marginal" deficiencies in Dynalantic's proposal require a
complete rewrite of its proposal and render the protester's proposal
essentially noncompetitive with MSI's--which was properly rated
outstanding.
We do not find Rice Servs., Ltd., to be controlling. Rice, in which we
held that an offer's exclusion was proper, involved major as well as
marginal deficiencies; here we are concerned with only marginal
deficiencies which can be easily remedied.
For example, as discussed above, in light of the submitted facilitator
resumes and narrative content indicating four full-time facilitators
were available to perform, Dynalantic should be able to readily remedy
the Navy's concerns about its proposal's statement indicating that
only "two" full-time facilitators were proposed. In this regard, at
the hearing, the TEP chairman's testimony showed that most of the
TEP's evaluated "marginal" deficiencies in Dynalantic's proposal
resulted from descriptive errors--e.g., omitting the term
"photographic" in promising a compliant bow-image visual subsystem;
omitting the term "21 ships" in identifying the proposed ship data
base; providing the exact name of the identified host computer--which,
when considered in the context of the TEP's simulator equipment
evaluation determining that Dynalantic had offered "state of the art
technology" and equipment which significantly "exceeds" almost all of
the RFP's technical specifications, should be correctable with minimum
government discussions and revisions by the contractor.
Regarding the remaining two deficiencies which arguably require
substantive changes in the contractor's technical
approach--Dynalantic's proposed full bridge simulator vertical field
of view (VFOV) and tide database program--the record provides no basis
for concluding that a substantial proposal rewrite is required for
either deficiency. At the hearing, the TEP chairman testified that
although Dynalantic's VFOV capability for its proposed full mission
bridge simulator was evaluated as "marginal" based on the protester's
offering of a 33-degree VFOV rather than the required 36-degree VFOV,
this marginal deficiency "wouldn't be a big deal to fix." With regard
to the full bridge simulator tide database deficiency, we simply note
that this specification affects only 1 of 12 required databases for
the full bridge simulator--and compared with the totality of the other
"marginal" deficiencies, does not by itself constitute a basis for
concluding that a substantial proposal rewrite would be required.
In sum, although the TEP rated many aspects of Dynalantic's technical
proposal as "marginal," as discussed above, the record provides no
basis for concluding that the totality of these "marginal"
deficiencies renders Dynalantic's proposal noncompetitive. In this
regard, at the hearing, the contract specialist testified that if
Dynalantic's proposal had received a "marginal" rating for each
evaluation factor, he would have included the proposal in the
competitive range and conducted discussions.[6] Since we think it is
clear from the record that Dynalantic's proposal could be made
"acceptable" without a substantial rewrite, and since Dynalantic's
offered price was [deleted] million lower than the [deleted] million
price offered by MSI, in light of the relative importance of price, we
think Dynalantic's proposal as a whole could not properly be viewed as
having no reasonable chance for award.[7] Under these circumstances,
we conclude that the exclusion of Dynalantic's proposal from the
competitive range was improper. See 47 Comp. Gen. 29 (1967) (even
though sole remaining offeror was technically superior, exclusion of
protester from competitive range without discussions was improper
since protester's offered price was $60 million lower than its
competitor's); Falcon Sys., Inc., B-213661, June 22, 1984, 84-1 CPD para.
658 (elimination of proposal from the competitive range, thereby
leaving a competitive range of one, is improper where informational
deficiencies were not so material that major revisions would have been
required to make proposal acceptable).
In reaching this conclusion, we note that this case is distinguishable
from those situations where the record makes it clear that, despite
being technically acceptable, the excluded proposal had no reasonable
chance for award when compared to another technically superior offer.
See, e.g., Agriculture Technology Partners, B-272978; B-272978.2, Dec.
5, 1996, 96-2 CPD para. 226. Unlike those cases, here the Navy does not
argue that Dynalantic lacked any reasonable chance for award. In
fact, as confirmed by the contracting officer's hearing testimony, the
Navy recognizes that the potential for the protester's proposal to
become technically acceptable after minimal discussions warrants
retaining Dynalantic's proposal in the competitive range.
Navy's Destruction of Individual Evaluators' Notes and Worksheets
The record shows that in accordance with its source selection plan,
the Navy destroyed the TEP members' individual evaluation notes and
worksheets. In its protest, Dynalantic urges our Office to sustain
its challenge to the Navy's destruction of documents; Dynalantic
contends that the Navy's practice violates FAR sec. 15.608(a)(3) (FAC
90-31), which requires the contracting agency to document its
technical evaluation, and sec. 15.612(d)(1) (FAC 90-32), which requires
the source selection official to consider "any rankings and ratings."
Our Office has criticized the Navy for its document destruction
practices. See Dimensions Int'l/QSOFT, Inc., B-270966; B-270966.2,
May 28, 1996, 96-1 CPD para. 257; Southwest Marine, Inc.; American Sys.
Eng'g Corp., B-265865.3; B-265865.4, Jan. 23, 1996, 96-1 CPD para. 56.
However, we recognize that evaluators' individual notes and worksheets
may or may not be necessary to determine the reasonableness of the
agency's evaluation. Dimensions Int'l/QSOFT, Inc., supra; Southwest
Marine, Inc; American Sys. Eng'g. Corp., supra.
In this case, the TEP's consensus evaluation--and the subsequent
hearing--provided an adequate record for our review. Consequently,
since our Office was fully able to review and examine the TEP's
evaluation, we have no basis for sustaining Dynalantic's protest based
on the agency's destruction of the individual evaluators' notes and
worksheets. However, we think it is appropriate to emphasize that had
the Navy not destroyed these documents, the requirement for oral
testimony--and the resulting costs to be paid as part of our
recommended corrective action--may well have been avoided.[8]
RECOMMENDATION
As discussed above, we think the TEP's evaluation was unreasonable,
and improperly deprived Dynalantic of a meaningful opportunity to
compete by resulting in the exclusion of Dynalantic's proposal from
the competitive range. Consequently, we sustain the protest.
In view of our findings above, we recommend that discussions be held
with Dynalantic. Best and final offers should be solicited from both
competitors and evaluated by a new TEP.[9] In the event that
Dynalantic is selected for contract award of the remainder of the
requirement, MSI's contract should be terminated.[10]
Since we sustain the protest, we also recommend that Dynalantic
recover its costs of filing and pursuing its protest, including
reasonable attorneys' and consultant fees. Bid Protest Regulations, sec.
21.8(d)(1), 61 Fed. Reg. 39039, 39046 (1996) (to be codified at 4
C.F.R. sec. 21.8(d)(1)). The protester should submit its certified claim
for such costs, detailing the time expended and costs incurred,
directly to the agency within 60 days after receipt of this decision.
Bid Protest Regulations, sec. 21.8(f)(1), 61 Fed. Reg., supra (to be
codified at 4 C.F.R. sec. 21.8(f)(1)).
The protest is sustained.
Comptroller General
of the United States
1. A past performance proposal, not at issue in this protest, was also
required.
2. Each simulator was to be equipped with the following principal
subsystems: a pilot house; ship controls, displays and
communications; radar simulation; and a visual subsystem.
3. Dynalantic's proposal included three separate references which
stated that the computer operator stations were located in the
learning feedback centers.
4. The SOW required the simulators to be equipped with pre-existing
ship handling programs, but to be also capable of accommodating
individual training programs written by ship commanders for unique
training needs. The TEP's evaluation shows that it concluded
Dynalantic misunderstood the trainer mission because its proposal did
not convey Dynalantic's understanding that the commanding officer may
choose to write his own training program. This conclusion is
completely unsupported by the record; for example, Dynalantic's
proposal specifically acknowledges that simulator "flexibility is most
important for ship directed training under the specific direction of
the ship [commanding officer]" and that "in cases where the
[commanding officer] elects not to use the [c]ontractor's curriculum,
the [commanding officer] will be furnished a guide to using the
training resources of the [complex]."
5. The record shows that the TEP downgraded Dynalantic for omitting a
"Figure 3-2" staffing diagram. At the hearing, the TEP chairman
testified that despite this deficiency, it was able to identify
Dynalantic's staffing approach. In this regard, Dynalantic proposed
several points of contact between the Navy and its simulator training
personnel; the primary point of contact--for overseeing the Navy's
needs and ensuring quality control--was Dynalantic's proposed Director
of Training.
6. In his competitive range determination document, the contract
specialist wrote that Dynalantic's pricing schedule appeared
[deleted]. At the hearing, the contract specialist explained that
this description simply referred to an assessment of Dynalantic's
pricing approach [deleted] and that the reference to Dynalantic's
pricing in no way constituted a negative assessment. The contract
specialist confirmed the Navy's repeated representations that price
did not factor into the agency's decision to exclude Dynalantic's
proposal from the competitive range; specifically, the contract
specialist testified that the sole basis for Dynalantic's exclusion
was the TEP's determination that the protester's technical proposal
was unacceptable.
7. The RFP provided that the "Government may elect to pay a price
premium of up to approximately 35 percent to select an offeror whose
non-cost price evaluation factors (e.g. technical and past
performance, if included) are superior." [Deleted].
8. The Navy has since reported that it will discontinue this practice.
9. Although we find no evidence of bad faith, we are nonetheless
troubled by the quality of the TEP's evaluation; as discussed above,
none of the TEP's cited deficiencies supports an "unacceptable"
rating. Under these circumstances, we agree with the protester that a
new TEP should be convened. See J. M. Cashman, Inc., B-233773, Apr.
14, 1989, 89-1 CPD para. 380.
10. We understand that the construction phase of the requirement is
nearly complete. However, the remaining simulator equipment
installation and support services--the crux of this technical
effort--have not been ordered. At the hearing, the TEP chairman
testified that Dynalantic's proposed simulator equipment could be
installed in the facility constructed by MSI; the TEP chairman also
testified that Dynalantic's personnel could easily operate and run
MSI's proposed simulator equipment.