BNUMBER:  B-278855.2 
DATE:  July 30, 1998
TITLE: Apache Enterprises, Inc., B-278855.2, July 30, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Apache Enterprises, Inc.

File:     B-278855.2

Date:July 30, 1998

J. Michael Slocum, Esq., Slocum & Boddie, for the protester.
John J. Pavlick, Jr., Esq., Thomas J. Madden, Esq., and Carla D. 
Craft, Esq., Venable, Baetjer, Howard & Civiletti, for Luminescent 
Systems, Inc., an intervenor.
Marian Sullivan, Esq., and Janice C. Beckett, Esq., Department of the 
Air Force, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In evaluation of proposals for aircraft lighting systems compatible 
with the Night Vision Imaging System (NVIS), contracting agency 
reasonably assigned awardee's proposal low performance risk rating, 
notwithstanding its lack of references for NVIS contracts, where 
solicitation did not require NVIS contract experience, and awardee 
received good references for its performance of aircraft lighting 
system contracts.

DECISION

Apache Enterprises, Inc. protests the award of a contract to 
Luminescent Systems, Inc. (LSI) under request for proposals (RFP) No. 
F33657-97-R-0010, a small business set-aside issued by the Department 
of the Air Force for interior and exterior aircraft lighting kits 
compatible with the Night Vision Imaging System (NVIS).  Apache 
principally asserts that the agency misevaluated LSI's past 
performance references in awarding its proposal a low risk rating.

We deny the protest.

The RFP, issued October 28, 1997, contemplated award of a fixed-price 
contract (with minor cost-reimbursable items) and stated that the 
agency would employ performance-price trade-off techniques to make a 
best value award decision.  However, the RFP proceeded to define "best 
value" as the proposal received from the low, technically acceptable, 
responsible offeror which has been awarded a low performance risk 
rating.  The RFP provided that award could be made to other than the 
low, technically acceptable offeror if that offeror was "judged to 
have a not applicable, moderate, or high performance risk rating."  
RFP  sec.  M.B.3.b.  The RFP ranked the technical/management area as the 
most important; price and past performance were of equal weight and 
ranked second.  Concerning past performance, the RFP stated that a 
performance risk assessment would be conducted on each proposal and 
required offerors to submit information on past "relevant" contracts 
demonstrating their ability to perform the proposed effort.[1]   RFP  sec.  
L.B.2.b, d.

On January 20, 1998, the agency received six proposals.  Five, 
including LSI's and Apache's, were found technically acceptable.  
After discussions, best and final offers (BAFO) were received; LSI 
offered a total evaluated price of $50.7 million for all basic and 
option requirements, and Apache offered a price of [deleted].  The 
agency's performance risk assessment group (PRAG) sent out 
questionnaires to the sources provided by the offerors.  LSI provided 
16 sources--8 references for efforts performed by LSI and 8 for its 
subcontractors.  The PRAG evaluated only the past performance of 
offerors and not their subcontractors.  Six of LSI's sources returned 
the questionnaires; four of those sources met the PRAG's definition of 
qualified sources.  After reviewing the responses, the PRAG awarded 
LSI a low risk rating. Further, a preaward survey by the Defense 
Contract Management Command rated LSI satisfactory in the areas of 
production capability, quality assurance capability, financial 
capability, and accounting system capability, and also found that LSI 
had more than 25 years of experience in electroluminescent lamp and 
aircraft light manufacture; the survey thus recommended award.  The 
Air Force made award to LSI and this protest followed.

Apache principally asserts that LSI's references evaluated by the 
agency for past performance did not include a contract for the design, 
fabrication and testing of integrated NVIS lighting systems because 
LSI has neither such experience nor experience in providing any of the 
part families in the F-16 lighting system.  In the absence of a 
reference source for NVIS lighting systems, Apache maintains, LSI 
should have received a "not applicable," rather than a "low," 
performance risk rating.[2]

We will review an agency's evaluation of proposals to ensure that it 
is fair, reasonable, and consistent with the evaluation criteria 
stated in the solicitation.  Wind Gap Knitwear, Inc., B-261045, June 
20, 1995, 95-2 CPD  para.  124 at 3. 

The evaluation here was reasonable.  This RFP called for cockpit and 
exterior aircraft lighting systems compatible with NVIS's--it did not 
cover the design, fabrication and testing of NVIS lighting 
systems--and nothing in the RFP indicated that the contract references 
furnished by offerors had to include NVIS lighting system contracts in 
order to be deemed "relevant" or for a proposal to receive a low 
performance risk rating.[3]  Indeed, the RFP did not establish any 
specific parameters for determining which aspects of reference 
contracts would be regarded as relevant, or as warranting a favorable 
risk rating.  Rather, offerors were merely required to submit certain 
information--including contracting agency, contract number, a brief 
description of the contract effort, indicating whether it was 
development and/or production, type of contract, period of 
performance, dollar value, and completion date--and to explain what 
aspects of the contract were deemed relevant, including significant 
achievements or past problems. 

We find nothing in LSI's source references which would reasonably 
preclude a low risk rating.  Of the six returned references, all rated 
LSI as either satisfactory or exceptional.  LSI's references included:  
[deleted].  These references all concern aircraft lighting systems, 
and, we think, thus are relevant to the requirement here.  We 
therefore see no reason why LSI's performance on these contracts would 
not be predictive of its performance under the current RFP, 
notwithstanding that LSI's references lacked a contract for the 
design, fabrication and testing of NVIS lighting systems.  We conclude 
that the agency reasonably assigned LSI's proposal a low performance 
risk rating based on these references.

Apache also argues that LSI engaged in an improper "bait-and-switch" 
concerning its proposed subcontractors.  To establish an improper 
"bait-and-switch," a protester must generally show that the firm in 
question either knowingly or negligently made a misrepresentation 
regarding resources that it did not expect to furnish during contract 
performance, that the misrepresentation was relied upon by the agency 
in the evaluation, and that this had a material impact on the 
evaluation results.  See USATREX Int'l, Inc., B-275592, B-275592.2, 
Mar. 6, 1997, 98-1 CPD  para.  99 at 9-10.  Here, the agency did not 
evaluate offerors' proposed subcontractors.  Accordingly, the agency 
did not rely on LSI's (or any offeror's) representations concerning 
its proposed subcontractors, and its subcontractors did not have a 
material impact on the evaluation results.  There thus is no basis for 
a finding of a "bait-and-switch."

The protest is denied.

Comptroller General
of the United States

1. Section M of the RFP stated that the purpose of the past 
performance evaluation was to identify and review relevant present and 
past performance and to seek past and present performance information 
through the use of simplified questionnaires sent to sources listed in 
the past performance volume of offerors' proposals.

2. Apache also argues that the agency violated its own internal 
evaluation plan by basing the relevance determination for LSI's 
references on insufficient (under $1 million) or unstated dollar 
values, as shown on the returned source questionnaires.  However, 
these relevance guidelines were not included in the RFP, and an 
agency's failure to follow an internal evaluation plan is not a valid 
basis for protest.  See Mandex, Inc.; Tero Tek Int'l, Inc., B-241759 
et al., Mar. 5, 1991, 91-1 CPD  para.  244 at 7.  

3. The agency's concern regarding technical compliance with NVIS and 
other RFP requirements was fully addressed in the evaluation factors 
in the technical/management area of the RFP.  Factors under this area 
included the offeror's understanding of the government's requirements 
based on the statement of work and draft technical requirements 
documents submissions; the offeror's manufacturing management system, 
using sound manufacturing principles to assure delivery of all kits on 
a timely basis; the offeror's plan for successfully accomplishing 
First Article Test shown in their Integrated Master Plan and 
Integrated Master Schedule; the offeror's configuration management 
program; and the offeror's quality system.  The agency found LSI to be 
technically acceptable under these criteria, and Apache has not 
challenged this determination.