BNUMBER: B-276945
DATE: July 31, 1997
TITLE: Canadian Commercial Corporation/Polaris Inflatable Boats, B-
276945, July 31, 1997
**********************************************************************
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:Canadian Commercial Corporation/Polaris Inflatable Boats
(Canada), Ltd.
File: B-276945
Date:July 31, 1997
John Lukjanowicz, Esq., Oles, Morrison & Rinker, for the protester.
Lucia E. Casale, Esq., Klimek, Kolodney & Casale, for Zodiak of North
America, Inc., an intervenor.
Joshua A. Kranzberg, Esq., and Tony K. Vollers, Esq., Department of
the Army, for the agency.
Glenn G. Wolcott, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency reasonably considered protester's failure to provide
material performance data as a basis for rating protester's proposal
"acceptable" rather than "exceptional" where solicitation required
submission of performance data.
2. Agency's assessment of risk associated with protester's proposal
was reasonably based, in part, on the fact that protester proposed to
modify a 10-person boat and had not previously built such a 15-person
boat.
3. Agency reasonably considered the fact that protester's spare and
repair parts were not currently in military inventories where
solicitation stated that components that were interchangeable with
existing military components would constitute an enhanced feature.
DECISION
Canadian Commercial Corporation/Polaris Inflatable Boats (Canada),
Ltd. protests the Department of the Army's award of a contract to
Zodiac of North America, Inc. under request for proposals (RFP) No.
DAAK01-97-R-0008 for 15-person inflatable assault boats.[1] Polaris
complains that the Army's assessment of a portion of Polaris's
proposal as "acceptable" rather than "exceptional" was based on
evaluation factors not set forth in the solicitation.
We deny the protest.
BACKGROUND
The RFP for this procurement, issued on January 31, 1997, sought
proposals for a 5-year requirements contract for commercially
available, 15-person inflatable assault boats with proven marine
performance. The boats are to be used by Army special operation
forces, Army engineers, and engineer divers during military dive and
training missions.
Section M-2 of the solicitation provided that award would be made to
the offeror whose proposal offered the best overall value to the
government and stated that proposals would be evaluated in four
areas--technical, logistics, cost/price, and past performance--with
technical denominated as the most important evaluation area. RFP
section M-2 also advised offerors that the technical evaluation would
be divided into two parts--essential features, to be evaluated on a
go/no go basis, and enhanced features, to be evaluated on the basis of
"discriminators that will decrease mission risk, increase boat
performance and decrease life-cycle cost."[2] Section M-2 of the RFP
further provided that:
Data measurements such as top speed, planing speed, time to
planing speed and maneuverability are required to document
claimed performance. Test data should include test conditions,
environmental conditions, test procedures, etc.
The following three elements [within the technical area] are
approximately equal in importance.
Element 1: Performance Enhancements. The performance
capabilities of the boat will be assessed to determine whether
they increase the probability of success of the missions for
which the boat will be used.
. . . . .
Element 3: Lifecycle Enhancements. The maintainability,
standardization, and service life of the boat will be considered
to determine the estimated life cycle cost of the boat.
Three proposals, including those of Polaris and Zodiac, were submitted
by the March 12, 1997, closing date.[3] Polaris's proposal was based
on its modification of a 10-person boat it had previously
manufactured. Following the agency's evaluation of initial
proposals,[4] discussions with each offeror were conducted. In its
letter opening discussions with Polaris, dated March 21, 1977, the
agency expressed concern that Polaris's proposal did not contain
adequate performance documentation. Among other things, the letter
stated:
At this time, the Government has serious reservations in your
company's ability to meet the requirements of the solicitation
within the time frame required. The solicitation request is for
a commercial off-the-shelf boat with proven marine performance.
The ten person inflatable boat that your company has proposed
appears to require significant modifications with many
engineering variables yet to be determined. Supporting
documentation to included test data pertaining to materials,
design, specifications and performance have not been provided.
If your company still wishes to remain as a potential offeror for
this solicitation, the Government requires detailed comprehensive
responses to the issues raised in the enclosed Offeror
Notification Forms (ONFs).
Thereafter, during discussions, the agency made repeated requests to
Polaris for additional information, including requests for specific
documentation verifying the performance capabilities of the 10-person
boat on which Polaris's proposal was based. Polaris acknowledges that
it was unable to provide the requested performance documentation.
On April 18, best and final offers (BAFOs) were submitted and,
thereafter, were evaluated by the agency. Zodiac's proposal was rated
"exceptional" under each of the non-cost/price evaluation areas, and
offered the lowest cost/price. Polaris's proposal was rated
"acceptable" under the technical area, "exceptional" under the other
non-cost/price evaluation areas, and offered the highest cost/price.
The "acceptable" rating under the technical area of Polaris's proposal
primarily reflected the risk associated with Polaris's inability to
document the performance capabilities of the boat on which its
proposal was based, coupled with the fact that Polaris had not
previously manufactured a 15-person boat. In its final evaluation
report, the agency stated:
The capabilities and performance of [Polaris's] proposed IAB
[inflatable assault boat] were not well documented.
Documentation was scattered and the relationship between the
documentation and the proposed IAB [inflatable assault boat] was
unclear. For example, a picture of a stability test is shown,
however, there is no description to show that the test boat is
the same size, shape, etc. as the proposed IAB. Polaris promises
the proposed IAB's performance will meet all PD and Solicitation
requirements. The lack of clear substantiating documentation
creates a greater risk to the Government in accepting the claimed
levels of performance.
There is still confusion regarding what Polaris is offering. For
example, Polaris states that the boat is based upon a 10-man boat
with a 20" diameter tube, the drawings for the 10-man boat has a
21" tube, and the drawing for a 15-man boat has a 22" main tube.
The PD requires nine (9) paddles, the proposal states 9 paddles,
but the drawing for a 15-man boat (provided with BAFO) states six
(6) paddles to be included. Similar discrepancies are seen
throughout the proposal. (Note: an inadequate quantity of
paddles is sufficient reason to disqualify the proposal.
However, this appears to be an oversight.)
In addition, Polaris's proposal was evaluated as presenting a weakness
under the technical element, lifecycle enhancements, on the basis that
"none of the Polaris spare or repair parts are in the current DoD
inventories."
Based on its final evaluation of proposals, the agency concluded that
Zodiac's proposal represented the best value to the government and
awarded a contract to Zodiac on April 25. This protest followed.
DISCUSSION
Polaris protests that its proposal was evaluated on the basis of
factors other than those stated in the solicitation and maintains that
if the agency had properly limited its evaluation to those stated in
the RFP, Polaris's proposal could only have been rated "exceptional"
rather than "acceptable." Specifically, although acknowledging that
"[t]hroughout the technical review process, the Army called for
detailed test procedures and test results," Polaris maintains that the
solicitation did not "explicitly" require the performance
documentation sought and, therefore, Polaris's failure to provide the
requested data was not a proper evaluation consideration.
It is fundamental that offerors be advised of the bases on which their
proposals will be evaluated. Specifically, a solicitation must state
all significant evaluation factors and subfactors, along with their
relative importance, and a procuring agency may evaluate proposals
only on the basis of those factors identified. Federal Acquisition
Regulation (FAR) sec. 15.605(d)(1), 15.608(a).
Contrary to Polaris's assertion that the RFP did not "explicitly"
require the performance data repeatedly requested by the agency, RFP
section M-2 expressly stated: "Data measurements . . . are required
to document claimed performance. Test data should include test
conditions, environmental conditions, test/procedures, etc." Polaris
acknowledges that it failed to provide the data sought, specifically
stating that the data was "unavailable to Polaris" and that only
"samples" of technical data were provided.[5]
In short, the RFP specifically advised Polaris that it would be
required to provide data measurements and test data documenting the
claimed capabilities of the boat on which its proposal was based, and
the agency repeatedly requested such data during discussions. Polaris
acknowledges that the requested data was "unavailable." On this
record, we find without merit both Polaris's assertion that
consideration of its failure to provide the requested documentation
constituted the application of an unstated evaluation factor, and its
complaint that it was improper for the agency to rely on Polaris's
submission of only limited data as a basis for rating the technical
area of its proposal as "acceptable," rather than "exceptional."
Polaris also complains that it was improper for the agency to consider
the fact that Polaris had never previously built a 15-person
inflatable boat in rating its proposal "acceptable." Polaris
maintains that, "[t]he solicitation never required that the boat
offered had to have been built before. . . . There is no commercial
demand of any substance for a 15-person inflatable boat. . . .
Consequently, only one or two inflatable boat manufacturers worldwide
have ever built a 15-person inflatable."
The record shows that, in assessing the claimed technical capabilities
of Polaris's proposed boat, the agency evaluators noted that Polaris
was proposing to modify a 10-person boat, and had not previously
manufactured the proposed 15-person boat. As noted above, during
discussions the agency questioned the capability of Polaris to
successfully achieve the significant engineering modifications that
would be required.[6] Similar to Polaris's failure to document the
performance of its 10-person boat, the agency viewed the fact that
Polaris was proposing to modify that boat, and had not previously
built the proposed 15-person boat, as a basis for assessing
additional risk to the agency.
While a solicitation must state all evaluation factors and subfactors,
FAR sec. 15.605(d)(1), 15.608(a), it need not identify each individual
element to be considered where the element is intrinsic to the stated
factors or subfactors. Marine Animal Prods. Int'l, Inc., B-247150.2,
July 13, 1992, 92-2 CPD para. 16 at 6-8.
Here, RFP section M-2(a) generally advised offerors that the agency
would consider whether an offeror's proposal "would result in a lower
risk to the Government in terms of the likelihood that an offeror will
timely deliver a quality product conforming to the requirements of the
solicitation." More specifically, with regard to evaluation of
enhanced features, section M-2 stated that proposals would be
evaluated "on the basis of discriminators that will decrease mission
risk. . . ."
The agency did not disqualify Polaris's proposal based on either its
failure to provide the performance data sought or the fact that it had
not previously built a 15-person boat. Rather, the agency considered
these facts as bases for rating Polaris's proposal "acceptable,"
rather than "exceptional." The fact that Polaris had not previously
built a 15-person boat, along with its inability to provide accurate
and complete documentation, reasonably must be understood as related
and relevant to the agency's assessment of the risk of whether Polaris
would successfully deliver a quality product conforming to the
solicitation requirements. Accordingly, we find without merit
Polaris's assertion that the agency's consideration of the fact that
Polaris had not previously built the 15-man boat it proposed
constituted the application of an unstated evaluation factor.
Finally, Polaris complains that it was improper for the agency to
consider the fact that "none of the Polaris spare or repair parts are
in the current DoD inventories." Again, Polaris maintains that this
constituted the application of an unstated evaluation factor.
As noted above, the plain language of the RFP advised offerors that
this aspect of proposals would be considered. Under the heading
"enhanced features,"
section L-19 of the RFP listed various features to be considered,
including whether "components are interchangeable with existing
military components." Consistent with section L-19 of the RFP,
section M-2 advised offerors that, in evaluating proposals under the
technical element, lifecycle enhancements, the agency would consider
"[t]he maintainability, standardization, and service life of the
boat."
The provision in section M advising offerors that proposals would be
evaluated on the basis of maintainability and standardization, along
with the provision in section L-19 stating that proposed components
which are interchangeable with existing military components would
constitute an enhanced feature, clearly provided a reasonable basis
for the agency's consideration of the fact that Polaris's spare or
repair parts were not currently within DOD inventories. Polaris's
protest to the contrary is simply without merit.
The protest is denied.
Comptroller General
of the United States
1. Polaris is a Canadian corporation and, pursuant to applicable
regulations, the Canadian Commercial Corporation (CCC) is the actual
offeror. If CCC were awarded a contract, it would subcontract 100
percent of the contract to Polaris. See Defense Federal Acquisition
Regulation Supplement sec. 225.870-3 (DAC 91-3). The protest was filed
on behalf of Polaris, hereafter referred to as the protester.
2. RFP section L-19 identified the specific portion of the 15-page
purchase description (PD), attached to the RFP, which listed the
essential requirements. Regarding enhanced features, RFP section L-19
listed various features for consideration, including hull design, keel
design, additional chambers, the inflation process and transfer valve
system, repair procedures, and whether the proposed boat's components
were interchangeable with existing military components.
3. The third offeror's proposal will not be discussed as it it not
relevant to the issues raised in the protest.
4. The agency used an adjectival rating scheme consisting of
"exceptional" (near-certain probability of success), "acceptable"
(fair probability of success), "marginal" (questionable chance of
success), and "unacceptable" (improbable chance of success).
5. Alternatively, Polaris challenges the agency's need for the data
sought, asserting:
[the] documents [sought by the agency] are unique to
military contracts. . . . [Such] military documentation
is an unaffordable luxury in the commercial world--the
commercial marketplace simply will not pay for it.
To the extent Polaris's protest is now challenging the provisions of
the solicitation, the post-award protest is not timely filed. 4
C.F.R. sec. 21.2(a)(1) (1997).
6. Consistent with this concern, the agency noted that the drawing
Polaris submitted during discussions reflected a boat with only six
paddles rather than nine as required by the solicitation. Although a
boat with nine paddles was an essential feature, the agency did not
disqualify Polaris's proposal, noting that the drawing appeared to be
a mistake. Nonetheless, it is clear that Polaris's inability to
submit a drawing accurately reflecting the boat's basic requirements
reasonably increased the agency's concern regarding Polaris's ability
to make the necessary modifications to the smaller existing boat.