BNUMBER:  B-279049; B-279049.2 
DATE:  April 30, 1998
TITLE: Chant Engineering Company, Inc., B-279049; B-279049.2, April
30, 1998
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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:Chant Engineering Company, Inc.

File:     B-279049; B-279049.2

Date:April 30, 1998

Michael H. Payne, Esq., and Joseph A. Hackenbracht, Esq., Starfield & 
Payne, for the protester.
Robert Martin, Esq., Simon, Turnbull & Martin, for Rexroth 
Corporation, an intervenor.
Glenn Heisler, Esq., Panama Canal Commission, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Evaluation of protester's proposal was reasonable and consistent 
with solicitation providing for submission of preliminary design for 
hydraulic power systems where agency reasonably found the information 
submitted with the preliminary design insufficient to establish that 
design could meet the agency's technical requirements. 

2.  Allegation that awardee received an unfair competitive advantage 
under solicitation to design and manufacture hydraulic systems for 
lock gate, because it performed an earlier contract to design a 
prototype system, fails to state a valid basis of protest, in the 
absence of evidence showing preferential or unfair action by the 
government.

DECISION

Chant Engineering Company, Inc. protests the award of a contract to 
Rexroth Corporation under request for proposals (RFP) No. 
CNC-82163-LM-29, issued by the Panama Canal Commission for hydraulic 
power systems to operate miter gates.  Chant asserts that the 
evaluation and rejection of its proposal were unreasonable.

We deny the protests.

On October 1, 1997, the Commission issued the RFP for a multiyear 
(8-year) fixed-price contract to design, fabricate, deliver, and 
supervise the installation of hydraulic power systems to replace the 
existing machinery for operating miter gates at locks in the canal.  
RFP  sec.  B, C.1.1.  The RFP advised offerors that:  the gates were 
nearly 65 feet in length and 7 feet in thickness, with heights ranging 
from 47 to 82 feet; the machinery had to open or close the gates 
within 2 minutes; and the canal's three locks included 80 gates, all 
requiring the new systems.  RFP  sec.  C.1.3.  The RFP advised potential 
offerors that the moving machinery consisted of a large gear, or crank 
gear, revolving in a horizontal plane, with a vertical pin at the 
periphery connected to a strut attached to the lock gate.  The crank 
gear room, into which the hydraulic cylinder would be installed, is 
subject to flooding and is separated from a compensating gear room by 
a watertight bulkhead.

The solicitation provided for award to the responsible offeror whose 
proposal the Commission determined "most advantageous (in other words 
represents the best value)," based upon listed evaluation criteria.  
RFP  sec.  M.1.  These criteria included three "technical merits" 
subfactors, as follows:  technical design and ease of installation; 
experience of the firm; and past performance.  RFP  sec.  M.2.A  The 
combined value of these subfactors was to be significantly more 
important than price.  RFP  sec.  M.2.B.

For evaluation under the technical design and ease of installation 
subfactor, section L of the RFP instructed offerors to furnish 
detailed technical information presenting the offeror's preliminary 
design for the hydraulic power system, in accordance with section C, 
the statement of work.  According to the RFP,  sec.  L.1, this information 
was to include the following:

     a.  Preliminary design for the hydraulic cylinder and hydraulic 
     power unit.

     b.  Preliminary design calculations for the forces exerted by the 
     existing miter gate moving machine.

     c.  A hydraulic control schematic for the main hydraulic power 
     unit.

     d.  A written description of the hydraulic system explaining how 
     it will operate to meet the design parameters listed in the 
     specifications.  Particular emphasis should be placed on the 
     pumps to be used and how they will be controlled.

     e.  A written description and/or drawing showing ability to shop 
     test the hydraulic cylinder under simulated field loading 
     conditions.

     f.  Electrical and control schematics with control operations 
     sequence description.

     g.  Electrical single-line, and elementary diagrams to indicate 
     functions of equipment components.

     h.  Step-by-step installation procedure.

     i.  Ease of Installation:  Offerors shall submit information as 
     to how their proposed hydraulic powered system will be installed.  
     Particular emphasis shall be placed on providing an installation 
     scheme that will reduce the outage time required to perform the 
     installation.  Ease of removal of the hydraulic cylinder and 
     other components and their maintainability shall also be 
     contemplated.  

With respect to the second subfactor, experience, offerors were to 
submit evidence that they could provide a mix of design, engineering, 
and manufacturing capabilities adequate to complete the contract.  In 
particular, they had to provide evidence of having successfully 
manufactured similar systems within the previous 10 years.  Regarding 
the third subfactor, past performance, the RFP provided for evaluation 
of each offeror's organization, capacity, and capability, requiring 
offerors to provide a description of facilities, an organizational 
plan, and information on previous contracts of comparable size, 
involving similar work.

The solicitation contained schematic drawings of a hydraulic system, 
with details of the existing equipment.  RFP  sec.  C.1.4a, J.  It listed 
certain design parameters, including the maximum hydraulic operating 
pressure, the maximum motor size, and a maximum cycle time of 2 
minutes.  RFP  sec.  C.1.4b(1).  The solicitation advised offerors that 
currently the lock control boards presented a miniature representation 
of the locks, showing the position of the miter gates; the contractor 
would have to replace this system with a new system showing the actual 
position of the gates while opening and closing.  RFP  sec.  C.1.4e(4), 
(6).  In addition, the RFP provided for a site visit within 15 days of 
notice of award, to allow the contractor "to thoroughly familiarize 
himself with all details of the work and working conditions, to verify 
dimensions and clearances in the field, and . . . [to] then advise the 
Contracting Officer of any discrepancies . . . ."  RFP  sec.  C.1.7.

Part 2 of the statement of work contained specific requirements for 
materials and mechanical equipment ( sec.  C.2.1), electrical equipment ( sec.  
C.2.2), and other requirements such as testing and training ( sec.  C.2.3).  
Section C.2.3c provided for shop testing of the pumps for the 
hydraulic power units to "verify flow and pressure ratings"; section 
C.2.3d provided for field testing of the hydraulic systems at the 
agency's expense "[a]fter the hydraulic system has been erected, 
adjusted, and otherwise made ready for operation at the site . . . ."  
Section C.2.2f contained requirements for electrical control devices 
and wiring, including a programmable logic controller (PLC), which 
would monitor data on the status of the lock opening or closing to 
control the operation of the system.

The agency received two proposals on November 5, one from Chant and 
one from Rexroth, and referred them to a technical evaluation board 
(TEB) on November 6.  Chant's initial offer was high in price 
[deleted].  Further, the TEB considered Chant's electrical proposal 
too vague, because [deleted].  The evaluators also found that the 
proposal lacked specifics on the position measuring system; that Chant 
had not provided sufficient detail on the hydraulic sequence of events 
for them to determine the acceptability of the design; and that the 
installation procedures were vague.  In addition, the TEB was not 
satisfied that Chant had sufficient experience with contracts similar 
in size and dollar value.  In the area of past performance, the 
evaluators were concerned that Chant's facilities were [deleted].  TEB 
Report, Nov. 10, 1997.

By letter dated November 13, the Commission advised Chant of the TEB's 
concerns and stated that its price was "way too high."  In its best 
and final offer (BAFO), Chant cut its price [deleted]--to $20,092,112, 
as compared to Rexroth's BAFO price of $21,990,812.  While Chant's 
BAFO satisfied some of the agency's concerns, many remained.  The TEB 
found that Chant's electrical proposal remained vague [deleted]. The 
TEB also found that Chant had neither [deleted] nor provided 
information on [deleted], information considered necessary to 
determine whether the hydraulic operator would meet the RFP's 2-minute 
opening and closing requirement.  With respect to the position 
measuring system, the evaluators concluded that both of the designs 
proposed by Chant were unacceptable.  TEB Report, Dec. 19, 1997, at 
1-2.

With respect to Chant's experience, the Commission initially concluded 
that Chant had performed one comparable contract of similar size, a 
contract with the Corps of Engineers to install 16 miter gate machines 
and power units at the London and Marmet locks.  The Corps of 
Engineers subsequently informed the Commission that, contrary to 
Chant's assertion that it had designed the system at the Marmet and 
London locks, the Corps itself had designed that system, providing 
detailed drawings for Chant, whose only responsibility was fabrication 
(for gates one-third the size of the miter gates here) and oversight 
of installation.  Pending clarification of Chant's responsibilities 
for the Marmet and London locks contract, the TEB concluded that, 
assuming the Corps's initial report was correct, the protester had 
essentially no design experience with hydraulic systems for miter gate 
operation. 

In sum, the TEB concluded that Chant's proposal was incomplete, did 
not meet minimum requirements, and, owing to its vagueness, presented 
a high risk of failure.

On December 19, the Commission issued a second request for BAFOs, to 
allow Chant to respond to the information from the Corps regarding its 
contract at the London and Marmet locks.  Chant's December 23 
response, which essentially disagreed with the Corps's analysis, did 
not alleviate the agency's concerns.  Neither offeror revised its 
proposal in response to the second BAFO request.  On January 12, 1998, 
in view of the TEB's recommendation that Chant's proposal be 
considered technically unacceptable, the contracting officer selected 
Rexroth for award.  At Chant's request the agency provided a 
debriefing by letter dated January 15, and this protest followed.

Chant protests the agency's evaluation of its offer and conclusion 
that the proposal was technically unacceptable.  Chant asserts that 
the RFP required only a "preliminary design," and that it accordingly 
submitted technical information at a level of detail commensurate with 
a preliminary design.  The protester notes that, in 1995, the agency 
issued a solicitation (No. CNP-89207-LM-29) for a prototype design of 
the hydraulic systems, under which Rexroth was selected for award.  
Rexroth was therefore able, Chant argues, to submit a design that the 
Commission had already approved, at a level of detail beyond the 
"preliminary design" called for here and which prompted the Commission 
to require an unreasonably detailed explanation from Chant.  The 
protester argues that the Commission (and the same group of 
evaluators) found acceptable Chant's 1995 proposal responding to 
essentially the same requirements and was therefore unreasonable in 
finding the current proposal, which was essentially the same, 
technically unacceptable.  In a supplemental protest, filed after 
receipt of the agency report, Chant asserted that Rexroth had an 
unfair competitive advantage for the instant procurement because of 
its experience with the prototype contract.

The Commission responds, generally, that the RFP used the term 
"preliminary design" only in reference to the hydraulic cylinder and 
hydraulic power unit and calculations for forces exerted by the miter 
gate moving machine.  See RFP, Data To Be Submitted With Proposal,  sec.  
L.1.a, b.  Further, even to the extent that the RFP called for a 
"preliminary" design, the agency notes that it required "detailed 
technical information" regarding that design, id. at  sec.  L.1, and argues 
that Chant did not submit the detail required to demonstrate that its 
design would operate as required.  Regarding the prior contract with 
Rexroth, the agency states that, prior to design of the prototype, its 
engineering personnel were unfamiliar with hydraulic miter gates and 
that the earlier procurement was in part designed to give the 
Commission some experience and familiarity with such equipment.  It 
did not, however, specify Rexroth's prototype design for use in the 
instant procurement because of certain concerns that it had with that 
design (cylinder size and installation problems, for example), was 
searching for alternatives, and, in any event, wanted the selected 
contractor to be responsible for making the design work.

It is not the function of our Office to evaluate proposals de novo.  
Rather, we will examine an agency's evaluation to ensure that it was 
reasonable and consistent with the stated evaluation criteria and 
applicable statutes and regulations, since determining the relative 
merit of competing proposals is primarily a matter within the 
contracting agency's discretion.  Robotic Sys. Tech., B-278195.2, Jan. 
7, 1998, 98-1 CPD  para.  20 at 7.  The protester's mere disagreement with 
the agency's judgment does not establish that an evaluation was 
unreasonable.  Medland Controls, Inc., B-255204, B-255204.3, Feb. 17, 
1994, 94-1 CPD  para.  260 at 3.  We find the evaluation here reasonable and 
consistent with the solicitation and the stated evaluation criteria.

As a preliminary matter, our review of the evaluation record 
associated with award of the prior contract for a prototype design 
indicates that, although the agency found Chant's proposal under that 
solicitation technically acceptable, the protester's proposal shared 
many of the problems encountered here--[deleted].  With regard to the 
primary technical factor, Chant's scores were essentially the same in 
the two procurements--[deleted].

What changed significantly from the prototype procurement to the one 
at issue here was the agency's perception of Chant's experience.  
Viewing Chant as experienced, under its Corps of Engineers contract, 
with the design of similar systems, the evaluators under the prior 
procurement were more willing to accept the protester's technical 
representations; further, they awarded Chant [deleted], considerably 
enhancing the protester's overall score.  Technical Evaluating 
Committee Report on Solicitation No. CNP-89207-LM-29 Hydraulic Powered 
Miter Gates, Oct. 18, 1995, at 1.  However, the information 
subsequently received from the Corps in connection with the current 
procurement cast substantial doubt on whether the protester had ever 
performed a similar design effort.  The statement of work in the 
solicitation for the Marmet and London locks contract--an invitation 
for bids (IFB)--indicates that Chant was to "fabricate," rather than 
design, the operating machinery.  Similarly, a statement from the 
chief of the Corps's design branch indicates that the IFB specified 42 
specific parts "or equal," with Chant providing [deleted]; apart from 
shop drawings, the only drawing prepared by Chant was a dimensional 
layout of components on top of the reservoir.  We do not find it 
unreasonable that the TEB was less willing to accept gaps in Chant's 
data, once reasonable doubts were raised whether the protester had 
experience in designing similar systems.  Each procurement is a 
separate transaction, and neither disparate evaluation scores nor 
different conclusions about an offeror's record of past performance 
between identical offers submitted under similar procurements 
demonstrate that the evaluation was unreasonable.  See Continental 
Serv. Co., B-274531, Dec. 17, 1996, 97-1 CPD  para.  9 at 7.

With regard to its technical submissions, the Commission states that 
Chant's design of the electrical control system failed to provide 
[deleted], and thus was unacceptable.  The protester contends that its 
electrical schematics were sufficient for a preliminary design, that 
the RFP did not require programming the PLC,[1] and that such 
programming is more appropriate for the contractual design effort.  
The agency denies that it expected offerors to program the PLC for 
their proposals, but states that it did expect them to describe the 
components and sequence of operations, show circuits, and provide 
enough information for the TEB to understand how the system would 
work.  Specifically, the Commission explains the required process as 
follows:  the PLC takes incoming information (or "inputs") and 
processes it by applying a programmed logic that arranges the inputs 
into a sequence, which is then issued as an "output."  The output 
controls the hydraulic movement of the system.  According to the 
Commission, Chant listed a vague series of inputs, but did not 
describe the logic or sequence the PLC would use to achieve control of 
the hydraulic movement.  Further, the drawing Chant submitted with its 
BAFO, in response to the Commission's questions in this area, showed a 
system of relays (inputs and connected outputs), with no PLC at all.  
While Chant asserts that the drawings provided with its BAFO were 
intended to supplement rather than revise or substitute for its 
initial design, there is nothing in the proposal to indicate this.  An 
agency's evaluation is dependent upon information furnished in a 
proposal, and it is the offeror's burden to submit an adequately 
written proposal for the agency to evaluate.  DATEX, Inc., B-270268.2, 
Apr. 15, 1996, 96-1 CPD  para.  240 at 6.  We cannot conclude that the TEB's 
concerns about Chant's electrical design were either unreasonable or 
inconsistent with the solicitation criteria. 

With respect to Chant's position measuring system, the Commission 
concluded that both of the designs proposed by Chant were 
unacceptable.  The Commission regarded the first proposed design, 
[deleted], as prone to damage from logs and floating debris.  Although 
Chant argues that the solicitation did not warn offerors to avoid such 
dangers, the Commission reasonably asserts that such conditions are 
not design criteria but existing Panamanian field conditions, which 
any offeror would be expected to take into account.  The Commission 
also concluded that the alternate design would require extensive 
physical modification to the existing crank gear room; Chant does not 
rebut the Commission's position. 

With regard to the hydraulic sequence of events, the Commission states 
that Chant's proposal failed to show the hydraulic oil flow and 
pressure plotted over the cycle of the miter gate opening and closing; 
this information would allow the agency to determine if the hydraulic 
operator could meet the RFP's 2-minute opening and closing 
requirement.  Chant contends that the solicitation did not identify 
the different hydraulic pressures and oil flow as parameters and 
argues that such a detailed analysis would ordinarily be part of the 
contractual design effort and not performed during development of a 
proposal.  The evaluators, however, considered such information 
necessary to establish that the proposed design could meet the 
critical 2-minute opening/closing cycle requirement; lacking any data 
on oil flow and pressure, and with questions as to Chant's experience 
in designing hydraulic systems, the TEB could not determine whether 
the design would work even as a "preliminary" one.  Although Chant 
argues that agency engineers could have verified the feasibility of 
the design from data provided with the proposal, it is the offeror's 
responsibility to provide, within the four corners of its proposal, 
the information for evaluation.  See EOD Tech., Inc., B-266026, Dec. 
18, 1995, 95-2 CPD  para.  273 at 4. 

We believe that the agency had a reasonable basis for finding that 
Chant's proposal was altogether too "preliminary," in that there was a 
significant risk that major components would not work as planned, 
especially in view of the data submitted by Rexroth and in the absence 
of any real analysis by the protester.[2]  In our view, the 
solicitation did not envision a contractor completely redesigning the 
system during performance, particularly in view of  sec.  C.2.3d, which 
provided for testing at the agency's expense after the system had been 
installed at the site.  Section C.1.7, providing for a site visit to 
ascertain "details" of the work, does not imply that a contractor 
could wait until the site visit to make basic decisions on the type of 
system that he will supply.  Based on the record here, the agency 
reasonably concluded that Chant's proposal presented too high a risk, 
particularly in view of the evidence that Chant was inexperienced with 
design work of a similar nature.[3]

Chant's supplemental submissions, asserting that Rexroth had an unfair 
competitive advantage in the procurement, fail to state a valid basis 
of protest.  Chant essentially argues that the knowledge gained by 
Rexroth during its design of the prototype allowed the awardee to 
submit nearly complete data on the system proposed for this 
procurement.  In support of its contentions, the protester offers only 
the fact, conceded by Rexroth, that many of the drawings submitted 
here are copies of those prepared for, or incorporate information 
gained during, design of the prototype.  Our Office has consistently 
held that there is no obligation for an agency to take steps to 
redress one offeror's competitive advantage, so long as the advantages 
do not result from preferential or unfair action by the government; 
specifically, knowledge gained through performance of a prior 
contract, without more, does not constitute an "unfair" advantage.  
See Bendix Field Eng'g Corp., B-241156, Jan. 16, 1991, 91-1 CPD  para.  44 
at 7.

In its final submission to our Office, Chant raised additional issues, 
challenging the adequacy of the discussions held here and asserting 
that its inclusion in the competitive range was improper, given the 
initial disparity in the technical ratings assigned to the two 
offerors.  Both issues are untimely.  Our Bid Protest Regulations 
require that protests based on other than alleged improprieties in a 
solicitation must be filed no later than 10 calendar days after the 
protester knew, or should have known, of the basis for protest, 
whichever is earlier.  4 C.F.R.  sec.  21.2(a)(2) (1997).  Chant's bases of 
protest stem from the material in the agency report; since Chant 
waited more than a month--from February, when it received that 
report--to raise these issues, for the first time on March 23, its 
objections are clearly untimely.[4]

The protests are denied.

Comptroller General
of the United States

1. As noted above,  sec.  C.2.2f of the RFP contained requirements for 
electrical control devices, including a PLC, which would monitor data 
on the status of the lock opening or closing.

2. For example, the power necessary to drive the rod was part of a 
tradeoff against stress.  In response to a discussion question, 
Rexroth provided extensive data indicating that a broader (lower psi) 
cylinder than it proposed could not achieve the 2-minute cycle time, 
while a cylinder with a smaller cross-section would not meet 
requirements for a safety factor of three against buckling.  Rexroth 
letter, Nov. 18, 1997 (response to BAFO request) at 2, with attachment 
"Comparison Between Cylinders."  Data submitted to support the latter 
part of the analysis used a cylinder of the precise size proposed by 
Chant; Chant's failure to submit any data of its own added to the 
agency's concerns.  In addition,  sec.  C.2.3c of the RFP provides for shop 
testing to "verify" flow and pressure ratings for the hydraulic power 
unit, at a minimum suggesting that the offerors were expected to 
provide some data on flow and pressure as a basis for identifying the 
ratings proposed in the design.

3. As noted above, the Commission also found Chant's installation 
procedure vague and, under the past performance factor, had concerns 
about the capacity of the protester's facility.  Given our conclusion 
that the Commission reasonably found Chant's proposal technically 
unacceptable on the grounds discussed above, we need not address the 
evaluation in these other areas.  Keco Indus., Inc., B-261159, Aug. 
25, 1995, 95-2 CPD  para.  85 at 8.  

4. Chant's allegations regarding retention of its proposal in the 
competitive range imply bias on the agency's part--that the agency 
wanted to make award to Rexroth and that the negotiations were only a 
subterfuge to create an appearance of competition.  We do not 
attribute unfair or prejudicial motives to agency officials on the 
basis of inference or supposition; a protester must provide credible 
evidence clearly demonstrating such bias.  Rockhill Indus., Inc., 
B-278797, Mar. 16, 1998, 98-1 CPD  para.  79.  The record shows that, while 
Rexroth had unique expertise in producing hydraulic systems, the 
competition was genuine; indeed, the agency had some concerns with 
Rexroth's design, and nothing in the record indicates that its 
selection was a foregone conclusion.