BNUMBER:  B-277917; B-277917.2; B-277917.4 
DATE:  December 8, 1997
TITLE: Magnum Products, Inc.; Amida Industries, Inc., B-277917; B-
277917.2; B-277917.4, December 8, 1997
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  It has been approved for public release.
Matter of:Magnum Products, Inc.; Amida Industries, Inc.

File:     B-277917; B-277917.2; B-277917.4

Date:December 8, 1997

William E. Hughes III, Esq., Whyte Hirschboeck Dudek S.C., for Magnum 
Products, Inc., and Irvin V. Plowden, Jr., for Amida Industries, Inc., 
the protesters.
Alexander J. Brittin, Esq., and Suzanne L. Karbarz, Esq., McKenna & 
Cuneo, L.L.P., for T & J Manufacturing, Inc., an intervenor.
Joseph Summerill, Esq., U.S. Department of Justice, Federal Prison 
Industries, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST
1.  Agency's determination that protester's revised proposal remained 
technically unacceptable after discussions, and that the proposal 
should be eliminated from further consideration for award, was proper 
where the agency reasonably concluded that the proposal would require 
major revision in order to become acceptable and the record shows 
that, in light of overall technical inferiority and higher price of 
its proposal, protester did not have a reasonable chance of receiving 
award.

2.  Protest that awardee fails to comply with solicitation's 
experience requirements is denied where solicitation did not expressly 
prohibit offerors from relying on proposed subcontractors to meet the 
requirements and awardee's proposal shows that proposed major 
subcontractor has required experience.

DECISION

Magnum Products, Inc. and Amida Industries, Inc. protest the award of 
a contract to T & J Manufacturing, Inc. under request for proposals 
(RFP) No. 1PI-R-0613-97, issued by the Department of Justice, Federal 
Prison Industries (FPI) for portable floodlight systems and related 
support services.  Magnum protests that the agency's exclusion of its 
proposal from the competitive range was unreasonable; both Magnum and 
Amida challenge the award to T & J. 

We deny the protests.

The RFP contemplated the award of a 5-year fixed-price 
requirements-type contract for the manufacturing and some assembling 
of portable floodlight systems, and related support services--the 
systems are to be delivered to FPI as kits to be assembled by inmates 
and supplied by FPI to other federal agencies. 

Section M of the RFP advised offerors of the following evaluation 
factors for award, listed in descending order of importance:  
technical quality (including subfactors for reliability and market 
acceptance, technical conformance and performance, certifications, 
maintenance and availability of replacement parts, safety features, 
and quality assurance, reliability, and maintainability programs); 
management (including previous performance experience and key 
personnel); and price.  Alternate proposals, as separate submissions 
accompanying a fully compliant basic offer, were permitted.  Award was 
to be made to the responsible offeror submitting the offer determined 
to be most advantageous to the government.

Magnum, Amida, and T & J were among those offerors whose initial 
proposals were included in the competitive range for discussions.  
Each offeror was told of the agency's concerns regarding 
weaknesses/deficiencies in its proposal.  After reviewing the revised 
proposals, the agency concluded that Magnum's proposal was technically 
unacceptable and excluded it from the competitive range.  Amida's and 
T & J's proposals remained in the competitive range; further 
discussions were held with these firms on August 11, and best and 
final offers (BAFO) were submitted and evaluated.  T & J's BAFO (at a 
unit price of $9,259) received a slightly higher technical/management 
evaluation score and offered a considerably lower price than Amida's 
BAFOs.  Award was made to T & J on August 28.  These protests 
followed.

Magnum's protest

Magnum protests the agency's decision to exclude its proposal from the 
competitive range, which was based primarily on a perceived deficiency 
regarding the proposed engine.  As explained below, the record here 
shows that the agency reasonably excluded Magnum's proposal from the 
competitive range.

The evaluation of proposals and resulting determination as to whether 
a particular offer is in the competitive range are matters within the 
discretion of the contracting agency since it is responsible for 
defining its needs and determining the best method of accommodating 
them.  Network Sys. Solutions, Inc., B-249733, Dec. 14, 1992, 92-2 CPD  para.  
410 at 4.  Generally, offers that are technically unacceptable as 
submitted and that would require major revision to become acceptable 
may be excluded from the competitive range.  Id.  Further, a proposal 
may be excluded from the competitive range if, based upon the array of 
technical ratings actually obtained by the offerors and consideration 
of proposed prices, the proposal does not stand a real chance of being 
selected for award.  Intown Properties., Inc., B-272524, Oct. 21, 
1996, 96-2 CPD  para.  149 at 4.  In reviewing an agency's evaluation and 
competitive range determination, we will not independently reevaluate 
proposals but instead will examine the evaluation to ensure that it 
was reasonable and in accordance with the stated evaluation criteria.  
Id. at 2.  Mere disagreement with the agency's technical judgment does 
not show that the evaluation was unreasonable.  Seair Transp. Servs., 
Inc., B-252266, June 14, 1993, 93-1 CPD  para.  458 at 4. 

As part of the technical evaluation here, offerors were to show 
compliance with the solicitation's statement of work requirements, 
including a performance purchase description (PPD) for the item, which 
set out minimum requirements for acceptability.  See RFP  sec.  L.B.1.  The 
PPD required that the engine-generator set have a proven reliability 
record (PPD  sec.  3.1.6.1) and be designed for "long life" (PPD  sec.  3.1.4 
and A.3.2.4.1) in harsh environments with "minimum maintenance and 
little or no downtime."  PPD  sec.  A.3.2.4.1.  The  PPD, at  sec.  3.1, also 
specifically required, as one of the "minimum essential criteria," 
that the engine be "capable of using [m]ulti [f]uels and . . . comply 
with the requirements in Appendix B" (PPD  sec.  3.1.4.2); in relevant 
part, Appendix B (at PPD  sec.  B.3.5.1) specified "JP-5" and "JP-8" jet 
fuel as "standard operating fuel" for the engine.

Magnum's initial proposal advised that when using JP-5 and JP-8 jet 
fuels, its proposed Isuzu engine is "[n]ot meant for continuous, high 
accumulation of operating hours."  The agency viewed this as an 
unacceptable restriction on fuel use and engine duration.  Since the 
protester's proposed engine/jet fuel restriction was viewed as 
inconsistent with the solicitation's long life and multi-fuel use 
requirements, the agency pointed out the following deficiency to 
Magnum during discussions:  "The proposed engine has a restriction of 
long hours using [JP-8] or other jet fuels."

The protester's revised proposal did not remove the Isuzu engine 
restriction; rather, in its revised proposal, Magnum stated that it 
was "convinced [Isuzu is] not concerned about the use of jet fuels in 
this application."  To support this contention, Magnum submitted with 
its revised proposal a copy of a letter from Isuzu which stated that, 
although Isuzu has not experienced problems with its engine due to the 
use of low lubricity jet fuels such as JP-5 and JP-8, it continues "to 
issue [its] standard jet fuel statement [including the challenged JP-5 
and JP-8 fuel restriction] to engine users, indicating that there is 
at least the theoretical potential for decreased injection system 
component life."  The agency evaluators found that Magnum's revised 
proposal remained technically unacceptable for failure to correct, 
among other things, this engine-related deficiency.  Magnum was 
notified that its proposal was excluded from the competitive range 
because it failed to meet RFP minimum requirements; the major 
deficiency cited was Magnum's proposed engine's failure to satisfy the 
RFP's multi-fuel use requirement because of the stated restriction 
associated with the use of certain required jet fuels.  The agency 
determined that the deficiency could not be cured without major 
revision to the proposal.

Magnum states that the agency unreasonably concluded that its proposal 
was unacceptable and required major revision to become acceptable.  
Magnum first contends that the engine manufacturer which issued the 
challenged restriction, Isuzu, states that the jet fuel problem is 
theoretical only.  Magnum contends that since Isuzu has not 
experienced actual problems with the engine's use of jet fuel, the 
restriction should not render the proposal unacceptable.  Our review 
of the record, however, confirms that the agency had a reasonable 
basis to conclude that the Isuzu restriction clearly is at odds with 
the RFP's requirements for a heavy-duty (in terms of both durability 
and duration of use), reliable, multi-fuel unit.  Although Isuzu says 
the restriction results from theoretical concerns, the fact remains 
that the restriction against the use of required fuels for any long 
period of time, contrary to the agency's needs, has not been removed 
from the protester's proposal.  Additionally, despite the fact that 
Magnum states generally that all engines are subject to certain 
performance problems when using jet fuels, there is no persuasive 
support in the record for this contention, and, moreover, no other 
offeror expressly restricted the use of its engine with required fuels 
as Magnum did.  Further, in our view, the materiality of the 
restriction is supported by the fact that acceptance of that 
restriction would not only constitute a waiver of requirements for 
Magnum, but would also affect the legal relationship between the 
parties.  For instance, the agency's position on future claims for 
performance-related problems from the proposed engine's use of the 
required jet fuels could be compromised by the agency's acceptance of 
the restriction, since such acceptance could reasonably be viewed as a 
waiver of contractor liability in this regard.  See generally Bishop 
Contractors, Inc., B-246526, Dec. 17, 1991, 91-2 CPD  para.  555 at 3.

Magnum next contends that substitution of its proposed engine would 
constitute only a minor revision to its proposal because different 
engines are essentially interchangeable in the engine/generator set.  
We see no basis to question the reasonableness of the agency's 
determination to the contrary.  The agency first points out that 
substitution of the engine could require numerous modifications to the 
engine-generator set; specifically, an Air Force engineer states that 
"[e]ngine mounting, vibration isolators, air management for the engine 
and for the generator, engine cooling system, exhaust system, control 
system, fuel supply hoses, electrical wiring, etc. would all require 
some engineering evaluation and modifications."  The Air Force 
engineer further explains that the engine is the most significant 
sub-component from a technical standpoint and that changing the engine 
would be relevant to the agency's evaluation of the proposal under all 
of the technical evaluation criteria and would involve major revision 
to the proposal.  The protester does not refute this position or 
provide detailed technical support for its general conclusion that 
alternate engines are "easily interchangeable."  Affidavit of Thomas 
Joseph, submitted with Magnum Comments, Oct. 17, 1997.

In our view, the record supports the Air Force's position that a 
substantial amount of technical information about any substituted 
engine would have had to be provided by Magnum, since the engine would 
have to be evaluated under all the subfactors--e.g., technical 
conformance and performance--of the technical quality evaluation 
factor.  The protester's unsupported, general contention that other 
engines are interchangeable in its system is simply insufficient to 
show that the agency's determination that engine substitution would 
entail major proposal revision was unreasonable, since even if certain 
engines were physically interchangeable in the proposed system, a 
major proposal revision--to include technical data on the substituted 
engine for evaluation by the agency--would still be required.[1]

Finally, in addition to the deficiency related to its proposed 
engine's restricted use, the record provides substantial support for 
the significant downgrades in evaluation score assigned to Magnum's 
technical proposal for a number of other deficiencies which the 
protester does not challenge.  For instance, Magnum was advised during 
discussions of other material deficiencies in its proposal, which the 
firm failed to cure in its revised proposal, regarding its failure to 
provide sufficient reliability, performance, and delivery information 
to meet the essential minimum criteria of the solicitation.[2]  
Consequently, the Magnum proposal was assigned a substantially lower 
overall evaluation score (including a substantially lower management 
proposal score) than T & J's and Amida's proposals.  Magnum's proposed 
price was also substantially higher than these two offerors' prices.  
Magnum concedes that a downgrade for the engine restriction might have 
been reasonable (rather than a finding of technical unacceptability) 
in terms of maintenance and life-cycle costs, and Magnum does not 
challenge the agency's critical evaluation of (and substantial 
downgrade for) other portions of its proposal.  Magnum likewise does 
not contend that substitution of the proposed engine (the subject of 
its protest) would have either raised its proposal's technical score 
to such an extent as to outweigh its comparatively low management 
score, or that such substitution would have lowered its proposal's 
substantially higher price.  Accordingly, in light of the protester's 
overall technically inferior proposal and substantially higher price, 
the record clearly supports the agency's conclusion that the firm had 
no reasonable chance for award; the proposal, therefore, properly was 
excluded from the competitive range for further consideration for 
award.  See Intown Properties, Inc., supra, at 4-5.[3]

Amida's protest

Amida contends that the agency improperly considered the experience 
and qualifications of T & J's major subcontractor, Allmand Brothers, a 
floodlight manufacturer, in determining that T & J met the 
solicitation's experience requirements.  The RFP called for award to 
an "experienced portable floodlight manufacturing firm" (RFP  sec.  C.4.1) 
that has "5 years experience in . . . floodlight systems" (RFP  sec.  
C.4.2).  Amida contends that consideration of a subcontractor's 
experience to satisfy these requirements is not permitted by the RFP.  
In support of this argument, Amida relies on section C.4.1. of the 
RFP, which states that the agency "seeks to enter into a development 
contract with an experienced portable floodlight system manufacturing 
firm."  Amida also points to the agency's response to a question 
received during the pre-proposal question and answer period.  One 
offeror contended that the "commercial floodlight manufacturer" 
requirement was unduly restrictive--the offeror suggested that the 
"specification requirements can be met utilizing non-development item 
major [subassemblies] without this provision."  The agency responded 
as follows:

     The requirement for "commercial floodlight manufacturer" is not 
     unduly restrictive and serves a material purpose.  The 
     solicitation is for a joint agreement with a commercial 
     floodlight manufacturer that has previous experience and 
     expertise to provide manufacturing data, unassembled parts, 
     subassemblies, technical direction, and prior knowledge for [the 
     agency] to assemble/manufacture reliable and durable floodlight 
     units.  A company that has not manufactured floodlights 
     previously has less experience to provide services and materials 
     required.

As a general rule, the experience of a technically qualified 
subcontractor may be used to satisfy experience requirements for a 
prospective prime contractor.  See  Tutor-Saliba Corp., Perini Corp., 
Buckley & Co., Inc., and O & G Indus., Inc., A Joint Venture, 
B-255756, Mar. 29, 1994, 94-1 CPD  para.  223 at 4-5.  If a solicitation by 
its express language prohibits satisfying a particular experience 
requirement through the experience of a prospective subcontractor, 
however, such a provision limits a prime contractor from relying on a 
subcontractor to comply with the experience criterion.  Id. at 5.

Amida does not challenge the agency's determination that Allmand has 
the requisite experience and qualifications, but rather states that 
the terms of the RFP do not permit consideration of a subcontractor's 
experience to meet the requirements.  Although the RFP (including the 
pre-proposal question and answer) emphasizes the importance of 
floodlight manufacturing experience to better ensure reliability and 
successful performance of the contract, and indicates that the agency 
anticipated a joint agreement with a commercial floodlight 
manufacturer, the RFP contains no express prohibition against a prime 
contractor relying on a subcontractor or other third party to comply 
with the solicitation requirements.[4]  Given the lack of any 
prohibition in the RFP on reliance on a subcontractor's experience, it 
was proper for subcontractor experience to be attributed to the 
offeror for purposes of assessing floodlight manufacturer/supplier 
involvement and experience.  Consequently, we see no basis to object 
to the agency's consideration of Allmand's experience in determining 
whether T & J satisfied the RFP's requirements.[5]

With regard to the agency's determination that T & J in fact did 
satisfy the experience requirements, T & J's proposal contemplates a 
significant role for Allmand in performance of the contract's 
floodlight manufacturing requirements, and it is undisputed that 
Allmand has the requisite floodlight manufacturing experience to 
comply with the RFP requirements.  Accordingly, we think the agency 
reasonably found that T & J, through its major subcontractor, 
satisfied the RFP's experience requirements.[6]

The protests are denied.

Comptroller General
of the United States

1. Magnum also contends that it offered an alternate engine in its 
revised proposal that the agency failed to evaluate.  The Magnum 
proposal provided that:  

     Isuzu is the engine manufacturing and service organization we 
     recommend for your application.  Kubota is another manufacturer 
     of diesel engines which could be used in this application. . . . 
     However, we believe Isuzu is the better engine . . .  We submit 
     Kubota's documentation in order to support the general assertions 
     we present and to let you see the like nature between engine 
     manufacturers.

The agency states that, although the Magnum revised proposal mentions 
Kubota, no Kubota engine was proposed by the firm.  Our review of the 
Magnum proposal confirms the reasonableness of the agency's 
position--the reference to Kubota is clearly for comparison to 
Magnum's proposed Isuzu engine; the Kubota engine was not priced by 
Magnum in the proposal, requisite technical data for the Kubota engine 
were not provided, and there was no separate proposal submission made 
for that engine, as required by the RFP for agency consideration of 
any alternate proposal.

2. Specifically, Magnum was told during discussions that the firm's 
proposal, among other things, failed to "supply documentation of the 
combined engine generator set performance history as a set" and that 
the proposal failed to provide required past performance and contract 
delivery schedule information.  In its revised proposal, Magnum 
explained that it did not provide the required documentation regarding 
its proposed engine-generator set's reliability and performance 
history since Magnum had no experience with or reliability data 
regarding these two sub-components working as a set.  The revised 
proposal also did not include detailed past performance and delivery 
schedule information, but rather, provided the protester's assurances 
that it believed it could meet all of the contract requirements.  

3. With respect to Magnum's challenge to the award to T & J, under our 
Bid Protest Regulations, a party is not interested to maintain a 
protest if it would not be in line for award if the protest were 
sustained.  See 4 C.F.R.  sec.  21.0(a) (1997).  Since the agency 
reasonably excluded Magnum's proposal from the competitive range for 
further consideration for award, and since another offeror's 
acceptable proposal was placed in the competitive range, Magnum is not 
an interested party to challenge the award to T & J.  See The 
Hines-Ike Co., B-270693, Mar. 15, 1996, 96-1 CPD  para.  158 at 4-5.

4. Subcontracting was plainly contemplated under the 
solicitation--subcontractor past performance and financial information 
was specifically requested by the solicitation (RFP  sec.  L.C.1.a), and, 
without differentiating between prime contractor and subcontractor 
performance information, the RFP instructions (at  sec.  L.C.1.b) provided 
in general terms that "[p]erformance information provided by the offer 
and any additional data obtained by the Government will be used for 
both responsibility determinations [and for evaluation purposes.]"

5. Similarly, the RFP's stated evaluation factors did not limit 
consideration by the agency of a proposed subcontractor's experience 
and technical expertise.  Thus, we also do not find persuasive Amida's 
general protest allegation that the evaluators should have assigned 
greater risk to the awardee's proposal due to T & J's lack of its own 
floodlight manufacturing experience.  Our review of the record 
confirms that the agency's risk assessment reasonably reflects the 
overall merits of the proposal, including the strong technical and 
management proposal submitted by T & J based upon its own substantial 
government contract experience and the specialized floodlight 
experience of its subcontractor.

6. In its supplemental report comments, Amida contends that even 
though Allmand is a proposed subcontractor rather than the actual 
offeror, since the agency considered Allmand's experience in 
determining T & J's compliance with the RFP's qualification 
requirements, the agency should have evaluated Allmand's business 
information before awarding the contract.  We have reviewed the 
awardee's technical proposal and the agency's record of its evaluation 
of that proposal in response to the protester's supplemental 
allegations.  Our review confirms that a substantial amount of Allmand 
information--regarding Allmand's business (including current financial 
data and evidence of the firm's 40 years of floodlight manufacturing 
experience), products (including reliability and sales data), and 
numerous outstanding past performance references--was provided in the 
T & J proposal and was considered by the agency in its evaluation of 
that proposal.  Consequently, Amida's contention that the agency 
failed to evaluate Allmand's business information and qualifications 
is simply not supported by the record.