BNUMBER:  B-276380 
DATE:  June 10, 1997
TITLE: Terex Cranes, Inc., B-276380, June 10, 1997
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Matter of:Terex Cranes, Inc.

File:     B-276380

Date:June 10, 1997

Ronald S. Perlman, Esq., and Frederick P. Hink, Esq., Porter, Wright, 
Morris & Arthur, for the protester.
Susan M. Lewandowski, Esq., and Jeffrey I. Kessler, Esq., Department 
of the Army, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that contracting agency unreasonably evaluated protester's 
proposed technical manual development program as representing a high 
risk for delaying the fielding of the cranes to be acquired under the 
solicitation at issue is denied where the record shows that the 
evaluation was reasonable and consistent with the terms of the 
solicitation.

2.  Post-award protest that contracting agency's price evaluation 
improperly included the pricing for some of the protester's "special 
tools" is untimely where the solicitation and the model contract, 
which was to be submitted as part of the protester's best and final 
offer (BAFO), put the firm on notice that the agency would conduct the 
pricing evaluation as it did; as a result, the protester was required 
to raise this issue, at the latest, prior to the time for receipt of 
BAFOs. 

DECISION

Terex Cranes, Inc. protests the award of a contract to Grove North 
America under request for proposals (RFP) No. DAAE07-96-R-X001, issued 
by the Department of the Army for all-terrain cranes.  Terex argues 
that the Army improperly evaluated its proposal.

We deny the protest.

The solicitation was issued to acquire commercially available cranes 
with design changes limited to those necessary to meet specified 
military and federally mandated requirements.  The RFP anticipated the 
award of a fixed-price, 5-year requirements contract for between 240 
and 464 cranes and their associated support requirements.  For 
evaluation purposes, pricing was based upon a quantity of 160 cranes.

Award would be made to the offeror whose proposal represented the best 
value to the government, considering logistics, price, technical, and 
past performance areas, listed in descending order of importance.[1]  
The only nonprice evaluation area at issue in this protest is the 
logistics area's maintainability factor, comprised of two equally 
important subfactors, manuals and maintenance actions.  

The Army evaluated the three proposals it received and established a 
competitive range of three proposals.  After discussions were 
concluded, the offerors were given model contracts, tailored to their 
proposals, which were to serve as the principal portion of their 
respective best and final offers (BAFO).   The final evaluation 
results were as follows:

                          Grove                Terex

Logistics             Good/Low Risk     Marginal/High Risk

1.  SupportabilityExcellent/Very Low RiskAdequate/Moderate Risk

2.  Maintainability   Good/Low Risk     Marginal/High Risk

    a.  Manuals       Good/Low Risk     Marginal/High Risk

    b.  Maintenance   ActionsGood/Low RiskMarginal/High Risk

Price                  $42,655,623          $42,676,623

Technical          Excellent/Very Low RiskAdequate/Moderate  
                                                     Risk

Past Performance      Good/Low Risk     Excellent/Very Low
                                                     Risk
The source selection authority determined that Grove had submitted the 
lowest-priced, technically superior proposal,[2] and that its proposal 
represented the best value to the government.  Among numerous concerns 
with Terex's proposal, the Army considered its commercial manuals to 
be so unusable for the purpose of military logistics support that new 
manuals in Department of the Army Technical Manual (DATM) format would 
have to be developed.  The Army believed that this shortcoming was a 
"very significant deficiency" because it would significantly delay 
fielding of the cranes.  After it received its debriefing on February 
27, 1997, Terex filed this protest.  

Terex argues that the Army unreasonably concluded that its offered 
technical manual development program represents a high risk for 
delaying the fielding of the cranes.[3]

Our Office will not engage in an independent evaluation of proposals 
nor make an independent determination of their relative merits.  
Litton Sys., Inc., B-239123, Aug. 7, 1990, 90-2 CPD  para.  114 at 9.  
Rather, we review the agency's evaluation only to ensure that it was 
reasonable and consistent with the terms of the solicitation.  Sensis 
Corp., B-265790.2, Jan. 17, 1996, 96-1 CPD  para.  77 at 6.  A protester's 
mere disagreement with the agency's conclusions does not render the 
evaluation unreasonable.  ESCO, Inc., 66 Comp. Gen. 404, 410 (1987), 
87-1 CPD  para.  450 at 7.  The record here shows that Terex's protest 
merely expresses its disagreement with the agency's evaluation and 
provides no basis to question the agency's judgment.  

Offerors were required to provide two complete sets of commercial 
manuals which were to include a description of the offered crane's 
maintenance and repair procedures.  The RFP advised that these manuals 
would be evaluated under the manuals subfactor to determine their 
usability in the military logistics support system, the extent of 
supplementation that they required, and their availability to support 
fielding of the cranes.  The RFP further stated that the risk of 
meeting the fielding schedule would be increased as the need for 
supplementation of existing commercial manuals was increased, or as 
the need to write full DATMs was made apparent.[4] 

The rationale for inclusion of this evaluation subfactor in the 
RFP--which was clearly spelled out to Terex during the course of the 
procurement--is as follows.  The Army maintains its own equipment on 
four maintenance levels--unit, direct support, general support, and 
depot.  Each level provides for an increasing level of maintenance and 
repair expertise to support Army equipment, and equipment manuals must 
support maintenance at each level.  As a result, manuals used by the 
Army must be more detailed and all-encompassing than typical 
commercial manuals.

Accordingly, when the Army acquires equipment, all of the supporting 
technical documentation for that equipment goes through a 
"provisioning" process which allows for its input into a database that 
permits maintenance and supply personnel to monitor, maintain, and 
manage each and every piece part of the equipment.  Provisioning 
begins by gathering the supporting technical data and submitting it in 
1,500 part increments to the Defense Logistic Service Center, which 
assigns each part a national stock number if one is not already 
assigned.  The increments are then reviewed at provisioning 
conferences which usually start 120 days after the contract is awarded 
and occur every 45 days until each part of the equipment has been 
provisioned.  Provisioning results in a Repair Parts and Special Tools 
List (RPSTL) which contains all of an item's parts and illustrations.

The requirement to obtain an RPSTL drives the technical manual 
delivery schedule.  If an offeror need only supplement its commercial 
manuals,[5] the delivery schedule is often relatively short--once the 
parts have been approved through provisioning, they are screened 
against the commercial manual to see if they are accounted for in its 
maintenance procedures and, if they are, the process ends.  If the 
parts are not accounted for in the offeror's maintenance procedures, 
or if, as here, new manuals must be developed, the parts data is 
forwarded to the contractor's technical writers who then begin to 
develop supporting maintenance procedures.  To do so, the contractor 
must first embark upon the labor-intensive and time-consuming task of 
gathering technical information from a multitude of internal 
manufacturer and external vendor sources, all of which may be located 
in many different areas.  It is only after this information is 
gathered that the technical writers can begin the iterative task of 
drafting the manuals.    

The Army states that all technical manuals procured in support of Army 
equipment must be validated and verified.  Validation, which requires 
the contractor to verify the technical accuracy of its manual by 
actually performing the maintenance and operating procedures on a 
crane, is begun 60 days after completion of the final provisioning 
conference.  If an offeror is merely supplementing its commercial 
manuals, validation is only necessary for the supplemental 
information.  However, if an offeror is developing new manuals, the 
entirety of the documents must be validated.  In the final step, the 
government must verify the usability and suitability of the technical 
manuals for the soldier.  

The record is clear that Terex was not fully cooperative with the 
Army's efforts to evaluate its proposal under the manuals subfactor.  
Contrary to the solicitation's requirements, the firm did not submit a 
maintenance manual or maintenance procedures for use above the 
operator or unit level.  Terex advised the Army that its maintenance 
manual for the offered crane was written in French and that a 
translation would not be provided unless Terex were awarded the 
contract.  The Army ascertained that the amount of supplementation 
required for the commercial manuals that Terex did submit was 
approximately 80 percent, and that DATMs would have to be developed.  
Terex acknowledged this fact during discussions, but proposed what the 
Army considered to be an impossible revised data delivery schedule.  
The schedule provided in Terex's BAFO was extended, but, in the final 
evaluation, the Army considered even this lengthy schedule to be 
unrealistically short.

Hence, Terex's proposal was rated marginal/high risk under the manuals 
subfactor because its manuals were unusable for military logistics 
support and required the development of DATMs.  The Army considered 
this to be a very significant deficiency because the process of 
developing DATMs, outlined above, is so time- consuming and expensive, 
and the most realistic data delivery schedule for Terex would result 
in delaying the fielding for nearly a year.  Terex's proposal 
represented the "highest possible risk" of having completed manuals to 
support the scheduled fielding.

Terex argues that the Army's concern over the risk of delayed fielding 
is unwarranted since it offered to provide a French translation of its 
manuals if it were awarded the contract, and these manuals "would 
suffice" until DATMs were available.  However, the Army is not 
required to assume the risk posed by Terex's business decision to 
withhold its manual in contravention of the RFP's requirements.  It 
was for the Army, not Terex, to decide whether the firm's manuals 
"would suffice," and Terex did not give the Army the opportunity to 
make that decision.  As the contracting officer states, Terex's 
suggestion would result in the award of a contract without a 
definitive scope of work for the maintenance manual since the Army 
would not know the extent of the supplementation required or whether 
DATMs would be required until after the translation and evaluation by 
the government.  

Terex also argues that the draft DATMs could be completed early and 
used for early fielding prior to validation.  This argument is 
premised upon the wholly unwarranted assumption that the draft DATMs 
will be completed "early."  Moreover, even setting aside the Army's 
statement that 100 percent validation is required for its technical 
manuals, the Army could hardly be faulted for any reluctance to field 
a crane with an unknown, untested, draft maintenance manual.  Under 
these circumstances, we think the Army's evaluation of Terex's 
proposal here was clearly reasonable.

In its protest, Terex also challenged the Army's evaluation of its 
proposal under the maintenance actions subfactor because Terex's 
modern equipment was allegedly not given the proper credit it deserves 
vis-a-vis the older equipment offered by Grove.  In its report, the 
agency fully addressed these arguments.  Because Terex did not respond 
to the agency's position as to these issues in its comments on the 
agency report, we consider them to have been abandoned.  Hadley 
Exhibits, Inc., B-274346, Nov. 5, 1996, 96-2 CPD  para.  172 at 4 n.1.  
Terex's comments did raise new allegations with respect to its 
evaluation under the maintenance actions subfactor concerning, among 
other things, the number of unscheduled maintenance actions its crane 
would require due to its complex suspension and steering system and 
problems caused by the need to remove the crane's cab outer-structure 
for transportability.   These allegations are untimely.

Terex received the agency report on this protest on April 4, 1997, and 
filed its comments on April 16--12 days later.  While Terex received 
permission to file its comments later than the 10 calendar days 
required by our Bid Protest Regulations, 4 C.F.R.  sec.  21.3(i), the 
granting of such an extension does not waive the timeliness 
requirements for filing bid protests.  Cygnus Corp., B-275181, Jan. 
29, 1997, 97-1 CPD  para.  63 at 4 n.2.  Where, as here, the later-raised 
bases of protest present new and independent grounds of protest, they 
must independently meet our timeliness requirements.  Ralph G. Moore & 
Assocs.--Recon., B-270686.3, June 5, 1996, 96-1 CPD  para.  268 at 2; GE 
Gov't Servs., B-235101, Aug. 11, 1989, 89-2 CPD  para.  128 at 4.  Since 
these allegations were filed 12 days after the basis of protest was 
known, they are untimely.  4 C.F.R.  sec.  21.2(a)(2); Cygnus Corp., supra.    

Terex finally argues that the Army's price evaluation improperly 
included pricing for some of the items reflected in its "special 
tools" contract line items (CLIN).  Terex contends that the Army does 
not require the tools for its crane's engine and transmission because 
they are already in inventory, and that, in any event, the Army does 
not require a set of special tools for each crane.  This argument is 
also untimely.

Offerors were required to identify all tools and equipment required to 
maintain their proposed crane.  Pursuant to section C.5.8. of the RFP, 
the Army would review this list to determine if any of the tools were 
"special tools"; that is, not already in the Army's inventory.  Tools 
identified as special tools for each offeror's particular crane would 
be added to that offeror's model contract.  The contractor was 
required to price a set of these special tools for each crane.  The 
solicitation contained five separate CLINs for special tools, one for 
each contract year, for a total of 160 special tools sets. 

Protests based upon alleged improprieties in a solicitation which are 
apparent prior to the time set for receipt of initial proposals shall 
be filed prior to that time.  4 C.F.R.  sec.  21.2(a)(1).  Alleged 
solicitation improprieties which arise after the initial closing date 
must be protested not later than the next closing time for receipt of 
proposals following the incorporation of the alleged impropriety.  Id.  
Aside from the solicitation itself, Terex's review of the model 
contract and special tools list, which were to be submitted as part of 
its BAFO, put the firm on notice that the Army's price evaluation 
would include the firm's pricing under the special tools CLINs; that 
these CLINs were for a total of 160 special tools sets; and that the 
special tools list included tools for its crane's engine and 
transmission.  Terex's protest is untimely because its concerns should 
have been raised, at the very latest, prior to the time for receipt of 
BAFOs.  Id.; Harris Corp., B-274566; B-274566.2, Nov. 27, 1996, 96-2 
CPD  para.  205 at 7.

The protest is denied.

Comptroller General
of the United States

1. Offerors were also required to provide sample cranes for a go/no go 
compliance demonstration, the results of which are not at issue here.

2. The proposal of the third offeror was considered to be technically 
equal to Grove's, but at a much higher price.

3. In its April 16 comments, Terex also challenged the Army's 
conclusion that its manuals were unusable.  Since Terex was apprised 
of this conclusion at its February 27 debriefing, but did not raise 
the issue until nearly 2 months later, its protest is untimely.  Bid 
Protest Regulations, 4 C.F.R.  sec.  21.2(a)(2) (1997) (protests of other 
than alleged solicitation improprieties must be filed not later than 
10 days after the basis of protest is known or should have been known 
or after a required debriefing).  

4. Hence, Terex is mistaken when it argues that the risk of meeting 
the fielding schedule was an unstated evaluation factor.

5. Army regulation requires that DATMs be developed if the extent of 
the supplementation required exceeds 50 percent of the commercial 
manuals.