TITLE:  AMS Mechanical Systems, Inc., B-281136; B-281136.2, January 4, 1999
BNUMBER:  B-281136; B-281136.2
DATE:  January 4, 1999
**********************************************************************
AMS Mechanical Systems, Inc., B-281136; B-281136.2, January 4, 1999

Decision

Matter of: AMS Mechanical Systems, Inc.

File: B-281136; B-281136.2

Date: January 4, 1999

Lawrence J. Sklute, Esq., Nolan Sklute, Esq., and David R. White, Esq.,
Sklute & Associates, for the protester.

Timothy Noelker, Esq., Steven E. Kellogg, Esq., Michael T. Marrah, Esq., and
Linda L. Shapiro, Esq., Thompson Coburn, for Engineered Air Systems, Inc.;
David P. Handler, Esq., Carl Vacketta, Esq., and Keven P. Mullen Esq., Piper
& Marbury, for Mechanical Equipment Company, Inc.; E. Keith Buchanan for
SFA, Inc.; and Raymond A. Beebe for Highland Engineering, Inc., intervenors.

Vera Meza, Esq., and Elizabeth Burt-Feller, Esq., U.S. Army Materiel
Command, for the agency.

Jacqueline Maeder, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably excluded from the competitive range a proposal which was
properly evaluated to be materially noncompliant and lacking information and
data necessary to support the proposed technical approach.

DECISION

AMS Mechanical Systems, Inc. protests the exclusion of its proposal from the
competitive range under request for proposals (RFP) No. DAAE07-97-R-X037,
issued by the Department of the Army, U.S. Army Tank-Automotive and
Armaments Command (TACOM) for the acquisition of a prototype water
purification/ desalination system, known as a Tactical Water Purification
System (TWPS). AMS objects to the evaluation of its proposal, arguing, among
other things, that TACOM did not understand AMS's proposed technology,
ignored the technical data supplied by the protester, and subjected the
proposal to a more rigorous evaluation than that which was applied to other
competing proposals.

We deny the protest.

The RFP was issued on October 28, 19971 [1] on an unrestricted basis as the
first phase of a two-phase acquisition2 [2] and, as amended, provides for
the award of up to two cost-plus-fixed-fee contracts for the design and
fabrication of up to three 1,500 gallons per hour (GPH) TWPS prototypes
under each contract. RFP sect. A-3, Executive Summary, para.para. 1- 3 and Amendments 3
and 6. Competition for phase two, the production contract, will be limited
to awardees under phase one and that procurement will be conducted as a
small business set-aside.3 [3] RFP sect. A-3, Executive Summary, para. 3. The 1,500
GPH water purification system is intended to replace smaller water
purification systems currently in use and, per the specifications, is to be
used to purify a broad range of water sources (fresh, brackish, sea and
nuclear, biological, and chemical contaminated water) to produce a safe,
reliable supply of potable water to support ground, amphibious, air mobile
and airborne units during military operations and operations other than war.
RFP sect. A-3, Executive Summary, para. 1.

Section L.11.2.1 of the RFP requires offerors to describe, in detail, the
system design concept, selection and integration of components and any
modifications required to enable the proposed water purifier to meet the
performance requirements contained in the statement of work and the purchase
description (PD) included in the solicitation. The PD states that the water
purifier must be capable of purifying, storing, and dispensing water meeting
Tri-Service Field Water Quality Standards, RFP, Attachment 1, PD sect. 1.2, and
lists numerous performance, design, readiness, maintainability and
reliability requirements. The water quality standards were included in the
RFP, Attachment 1, PD Attachment A. In relevant part, the agency states that
the Tri-Service Standards set forth 18 water quality criteria, including,
among other things, chemical properties and agents and coliform bacteria.
Additionally, offerors were required to provide a rationale for component
selection, including design calculations and an outline of the major
modifications anticipated in meeting the requirements. The solicitation
calls for the system description to include a narrative describing the
physical attributes, a list of major components with specifications (such as
the manufacturer, model number, size, weight, materials of construction,
power requirements, performance ratings, etc.), sketches, flow and
electrical diagrams to include the relative location of major components,
instrumentation, valves, and pipe/hose sizes, and anticipated flow rates,
pressures, and temperatures of the raw, brine and product water throughout
the various stages of the purification process. The solicitation also
required offerors to describe in detail how their proposed systems would
meet specified requirements outlined in sections 3.1.1 through 3.1.5, 3.1.7,
and 3.1.11; 3.2.6 and 3.2.11; and 3.3.1, 3.3.4, and 3.3.6 of the PD4 [4] and
specifically stated that "[t]he claimed or anticipated performance
characteristics should be supported by pertinent information, such as
published specifications, commercial literature, test results and the
results of computer simulations or modeling." RFP sect. L.11.2.1.

Section M.3.1 of the RFP provided that the agency would award contracts to
the offerors whose proposals represent the best overall value to the
government and advised that proposals would be evaluated on technical, past
performance and cost factors, with the technical area significantly more
important than both the past performance and cost areas combined. RFP
sect. M.4.2. The RFP stated that, as part of the best value determination, the
relative advantages and disadvantages of each proposal would be considered
and that the agency would assess the relative risks associated with each
offeror and proposal. RFP sect. M.4.1.

As relevant here, the technical area included technical approach, facilities
and schedule, and logistics engineering. RFP sect. M.4.2.1 and Amendment 3. The
RFP provided that each of these elements would be evaluated on the basis of
risk to the government of meeting the requirements specified in the
solicitation. RFP sect.sect. M.4.2.1.1; M.4.2.1.2; M.4.2.1.3. As noted above, the PD
contained in the RFP listed performance/verification objectives and advised
that if an offeror proposed a desired performance characteristic,5 [5] the
evaluation must show that the desired performance characteristic is
achievable at moderate to low risk in order for the performance
characteristics to be considered an advantage in the appropriate element.
RFP sect. M.4.2.1 and Amendment 3. No additional credit was to be given for
performance beyond the desired level. Id.

Finally, the solicitation incorporated by reference FAR sect. 52.215-16 Contract
Award, Alternate II, which states, in relevant part, that the agency
intended to award the contracts without discussions and that, therefore,
each initial offer should contain the offeror's best terms. The agency
reserved the right to conduct discussions if it later determined that
discussions were necessary. Id. The RFP reiterated at Section M.6 that "it
is important that the offeror's initial proposal be complete and
comprehensive," and advised that if discussions were held, they would be in
accordance with FAR sect. 15.610, which provides, in relevant part, that
discussions would be held with all responsible offerors who submit proposals
within the competitive range. FAR sect. 15.610(b).

Eighteen offerors, including AMS, submitted proposals by the March 30, 1998
closing date. After an initial review, seven proposals were eliminated as
technically unacceptable and another offeror withdrew. The agency then asked
for additional information from the remaining 10 offerors in the form of
written items for discussion (IFD). The record shows that TACOM issued more
than 30 IFDs to AMS requesting additional information regarding its proposed
purification system. Each IFD provided a relevant RFP reference, specific
pages in the proposal that required clarification and questions to be
answered. For example, IFD A-T-TA-MS-1 listed section L.11.2.1, Design
Concept, of the RFP and noted that this section requires technical data on
major components and a rationale for their selection. Citing pages 25
through 28 of the AMS proposal, TACOM asked AMS:

How do you propose to prevent debris from entering the [deleted] and
[deleted]? How do you propose to prevent [deleted]? Please provide all
necessary information (size, weight, location, power requirements,
performance characteristics, etc) to evaluate any components you propose to
use for debris removal and [deleted] prevention.

IFD A-T-TA-MS-1.

Other IFDs issued to AMS requested information on AMS's proposed cleaning
system; calculations or modeling to support AMS's assertions regarding flow
rate; detailed overall and component [deleted] and [deleted] calculations;
electrical schematic of the high voltage system including all contactors,
circuit breakers and other high voltage controls, the size and weight of the
enclosure and the high voltage components installed in the enclosure;
correct [deleted] motor size and necessary supporting data for the
[deleted]; calculations showing the maximum [deleted] that can be tolerated
and still meet the production requirement; calculations to support AMS's
estimates of water production at various temperatures and turbidities; and
detailed description of the power requirements for the [deleted], overall
[deleted] on the [deleted] process and the temperatures and flow rates of
the incoming feed, product, concentrate, [deleted], and [deleted].

Based on responses to the IFDs and proposals, members of the source
selection evaluation board (SSEB) evaluated the 10 proposals and reached a
consensus on the advantages, disadvantages, and risks of each proposal. For
each evaluation element, the SSEB assigned adjectival ratings of "excellent"
(low risk); "good" (low to moderate risk); "adequate" (moderate risk);
"marginal" (moderate to high risk); and "poor" (high risk)6 [6] and provided
narratives supporting the assessment.

Of the 10 proposals, AMS's proposal was ranked next to last, with adjectival
ratings of "poor" for technical approach, "marginal" for facilities and
schedule, and "good" for logistics engineering. The SSEB noted 7 advantages
and 19 disadvantages under technical approach and 2 disadvantages under
facilities and schedule.7 [7] The SSEB concluded that the AMS proposal
demonstrated:

an approach that will not be capable of meeting all the requirements and
objectives. The risk of unsuccessful performance is high, because of [a]
lack [of] detail in the design and lack of actual supporting data. The
solutions are further considered to reflect high risk in that they lack
clarity or precision, are unsupported and do not demonstrate an
understanding of the requirements.

Evaluation Work Sheet at 5.

The agency determined to include five proposals within the competitive
range,8 [8] and eliminated AMS's proposal, among others, on the basis that
it had no reasonable chance for award. By letter dated August 31, TACOM
notified AMS that its proposal was outside the competitive range and would
not be considered for award. The letter included an attachment listing each
of the advantages and disadvantages noted by the SSEB. After a debriefing,
AMS protested to our Office.

AMS challenges, in sententious detail, each of the evaluated technical
disadvantages cited by the agency and argues that its proposal was
misevaluated because "TACOM did not understand the operating characteristics
of [AMS's] proposed [deleted] technology." Protester's Comment's, November
27, 1998, at 9. Specifically, AMS proposed a [deleted] system, which uses a
specialized [deleted] process known as [deleted] to purify water rather than
the reverse osmosis technology proposed by the other offerors whose
proposals were included in the competitive range. The reverse osmosis
technology is a process of separating water from its impurities by forcing
the water under pressure through a semi-permeable membrane, referred to as a
reverse osmosis, or RO, element. In contrast:

The [deleted] process [deleted] and then [deleted]. The process of [deleted]
impurities.

AMS Proposal at 25.

The protester takes the position that the agency is unfamiliar with its
proposed [deleted] technique and, therefore, misunderstood the technology.
The protester also asserts that TACOM failed to consider or ignored
technical data supplied by AMS, evaluated its proposal on the basis of
unstated evaluation factors, and subjected its proposal to unequal treatment
by applying overly rigorous or onerous evaluation criteria.9 [9] Protester's
Comments, November 27, 1998, at 10, 17-18. AMS believes that, had its
proposal been evaluated properly, it would have been included in the
competitive range. The protester also states that "AMS prepared its offer in
anticipation that TACOM would ultimately conduct discussions," and argues
that the agency improperly failed to conduct discussions with AMS. Protest
at 13. Finally, AMS claims that the procurement is flawed because offerors
did not propose on a common basis. Supplemental Protest at 4.

In reviewing an agency's technical evaluation and its competitive range
determination, our Office will not reevaluate the proposals; rather, we will
examine the record to ensure that the evaluation was reasonable and in
accordance with the solicitation's evaluation criteria. Cobra Techs., Inc.,
B-272041, B-272041.2, Aug. 20, 1996, 96-2 CPD para. 73 at 3. The protester's
mere disagreement with the agency does not render the evaluation
unreasonable. Ogden Support Servs., Inc., B-270354.2, Oct. 29, 1996, 97-1
CPD para. 135 at 3.

Based on our review of the record, we see no basis to question the
reasonableness of either the agency's technical evaluation or the resulting
decision to exclude AMS's proposal from the competitive range.10 [10] The
evaluated technical disadvantage ratings assigned to the AMS proposal either
concerned specifications that the proposed [deleted] unit simply did not
meet or, more frequently, related to the agency's overriding concern that
AMS's proposal provided insufficient information on major technical
requirements to demonstrate the feasibility of AMS's proposed system.
Specifically, for more than half of the 19 evaluated technical
disadvantages, the evaluators noted that AMS failed to adequately respond to
the IFDs issued by TACOM because the protester did not provide the data
requested to support its performance claims. In this regard, it is an
offeror's responsibility to prepare an adequately written proposal and to
furnish all the information required by the solicitation, and an agency
properly may downgrade an offer with significant informational deficiencies.
Intown Properties, Inc., B-250392, Jan. 28, 1993, 93-1 CPD para. 73 at 5; Cook
Travel, B-238527, June, 13, 1990, 90-1 CPD para. 571 at 6. Here, as discussed
below, the record shows that AMS failed to present the required specific
information in the majority of the areas in which the firm's proposal was
found deficient. In addition, the agency reasonably concluded that AMS's
proposal simply did not meet the RFP requirements.

For example, the record shows that AMS's proposed system did not meet
crucial height or width limitations specified in the RFP. Specifically, PD
sect. 3.1.4 Containerized Loads, as amended by Amendment 7, outlined the
requirements for containerized loads and required that the purification
system when mounted on the [container roll-in/out platform] CROP, "shall fit
and be secured inside a single 8 foot x 8 1/2 foot x 20 foot International
Organization for Standardization (ISO) shipping container." The amendment
specified that the ISO door opening was 89 inches, RFP, Amendment 7, ISO 668
International Standard, Table 3, and also specified that the CROP height was
10.5 inches. RFP, Amendment 7 sect. 3.15.1. The agency required 2 inches for
maneuverability. Id. sect. 3.8.1. Thus, the maximum acceptable height of the
system is 76.5 inches (89 inch door opening less the 10.5 inch CROP height
and the 2-inch maneuverability allowance).

PD sect. 3.1.5 Operational Platform, as amended by Amendment 7, required that
the purification system be capable of operating from the ground in the
skid-mounted configuration, on the bed of a standard military stretch
trailer and on the bed of a standard military 5-ton cargo truck. Amendment 7
provided a sketch of the 5-ton cargo truck, which indicated 168-inch inside
and 174-inch outside bed length dimensions and 88-inch inside and 96-inch
outside bed width dimensions. The outside width dimension is provided to
enable the installation of guard rails.

AMS initially proposed an overall length of 115 inches, overall width of 91
inches and overall height of 78 inches. AMS Proposal at 79. The proposed
height of 78 inches exceeds by 1.5 inches the agency's specified limitation
and the proposed width of 91 inches exceeds by 3 inches the 88-inch width
limitation specified in Amendment 7. In IFD-A-T-TA-KMO-01, TACOM asked AMS
to provide dimensional sketches of the trailer, the 5-ton cargo truck and
the CROP operational platforms, showing dimensions and the connection points
of hoses and cables to the remotely located components of the system. In
response, AMS submitted a one-page narrative and drawings of the proposed
[deleted] operated on a trailer, a truck, the CROP and on the ground. For
each condition, the length, width and height dimensions of the [deleted] are
listed as 91.1 inches, 90.4 inches and 81.5 inches, respectively. Thus, in
response to the IFD, AMS increased the overall height of its proposed system
to 81.5 inches and decreased the width of its proposed system to 90.4
inches. The 81.5-inch height dimension is 5 inches greater than the
76.5-inch maximum height requirement and the 90.4-inch width is 2.4 inches
greater than the relevant 88-inch inside width requirement. As a result, the
agency assigned AMS's proposal a disadvantage rating on the containerized
loads requirements and noted that there was "[h]igh risk that [the] system
will not fit inside an ISO container when mounted on a CROP because of the
proposed system height." Evaluation Work Sheet at 6. The agency also
assigned a disadvantage rating for the operational platform requirement and
stated that there was a "[h]igh risk that system will not fit on the bed of
the 5-ton truck because of the proposed width of the system." Id. at 6-7.

In its protest, AMS admits that the height of its proposed system is "5
[inches] over the limitation" and that its proposed width "is only 2.4
[inches] over the stated limitation of PD 3.1.5" but argues that the overall
height and width "could easily be reduced" and suggests that the evaluation
is somehow flawed because TACOM assessed the risk based on the dimensions of
the system, yet the "procurement involves performance specifications, not
design specifications." Protester's Comments, November 27, 1998, Exhibit 1
at 22-23. The protester also asserts that these matters "can be easily
addressed during discussions." Id. at 22.

As noted above, the specifications were listed in the PD under the general
heading of "System Requirements." While the requirements consisted primarily
of performance specifications, the PD specifications also included design,
logistics and readiness requirements. It is self-evident that the
containerized load and the operational platform requirements were intended
to ensure that the agency could safely transport and operate the unit. The
height and width limitations were clearly stated as a solicitation
requirement and the record shows that the protester's proposed purification
unit did not conform to either the height or the width restrictions. The
fact that the protester now claims that it could have reduced the overall
dimensions is inconsequential because the agency properly evaluated the
proposal on the basis of the nonconforming height and width that were
actually proposed. Moreover, the protester's assumption that these issues
could be addressed during later discussions ignores the RFP provisions,
noted above, informing offerors that the agency intended to award without
discussions and repeatedly advising offerors to submit complete and
comprehensive initial proposals. Indeed, our review of the record,
particularly in light of the protester's statement that it "prepared its
offer in anticipation that TACOM would ultimately conduct discussions,"
Protest at 13, suggests that the protester misunderstood or ignored the RFP
provisions concerning discussions and relied, to its detriment, on its
misperception that TACOM would hold later discussions with all offerors.
Moreover, TACOM asked AMS to look at its proposed dimensions when it
requested, among other things, that AMS submit dimensional sketches of the
5-ton cargo truck and, in response, the protester failed to cure the obvious
proposal deficiencies. We view the IFD process as discussions during which,
as noted before, AMS was issued numerous specific requests for additional
information, supporting data and explanation of its proposed solution,
consistent with the FAR sect. 15.610(c) description of discussions as advising
the offeror of deficiencies in its proposal and providing an opportunity for
the offeror to submit revisions.

For 12 of the 19 evaluated technical disadvantages, TACOM specifically noted
in its evaluation that the protester failed to submit adequate responses to
the agency's IFDs or supporting data for its proposed purification system.
For example, RFP, PD sect. 3.1.2, which provided flow rate requirements, stated
that:

The . . . system shall produce at least 1200 gallons of product water per
hour (gph) from a source with 45,000 [milligrams per liter] mg/L [total
dissolved solids] TDS and 1500 gph or greater from a source containing 1,000
mg/L of TDS; turbidities of up to 150 [Nephelumetric Turbidity Units] NTUs;
and temperature ranges from 32 to 95 F.

It is desired to have a product water production rate of 1200 gph from
sources containing 60,000 mg/L of TDS. It is desired to have the product
water production rate independent of source water temperature.

AMS's proposal states that its proposed system "can purify [deleted] gallons
of fresh drinking water per hour," Proposal at 71, and that the water
production of its system was [deleted]. Id. at 71-74. However, the proposal
contained no supporting documentation or design calculations. In IFD
A-T-TA-MS-3, TACOM notified the protester that its proposal was incomplete
and requested that AMS provide, among other things, technical data on major
components of its system, calculations or modeling to support flow rate, a
detailed overall and component [deleted] of the proposed system operating
under specified conditions, [deleted] calculations for all [deleted],
stating all assumptions (such as inlet/outlet temperatures, flows,
[deleted], fouling factors, etc), [deleted] calculations and supporting data
for selection of pumps (feed, [deleted], waste and recirculation),
[deleted]. Supporting data was to include the manufacturer's technical
specification sheet, pump to [deleted] characteristic curves, component
size, weight, and power requirements. In IFD A-T-TA-MS-7, TACOM also
requested that AMS provide the [deleted] motor size and "supporting data for
the sizing."

The agency found AMS's response to the IFDs inadequate and assigned AMS a
disadvantage for increased risk of not meeting the flow rate requirement
because AMS failed to provide the required calculations for sizing of
[deleted], pumps and [deleted]. In its report on the protest, the agency
points out that the protester failed to provide component [deleted],
[deleted] calculations for [deleted], and [deleted] calculations for
components. Also, the protester failed to supply supporting data for
[deleted] motor sizing.

The protester disagrees with the assessment and points to "18 pages of data,
calculations, manufacturer's literature, and several pages of rationale"
which the protester argues did supply the information requested by TACOM,
including overall and component [deleted] for multiple operating conditions,
and computerized flow charts listing major components with calculations
showing the required energy use for each component. Protester's Comments,
November 27, 1998, Exhibit 1 at 9. The protester also states that it
"effectively provide[d] the [deleted] calculations for all the [deleted]"
and says that the [deleted] "are necessarily incorporated into the
Computerized Flow Models provided by AMS." Id. at 9-10. The protester also
notes that it specifically stated that the [deleted] of the [deleted] is
"based on a [deleted] of [deleted] units because they are effectively the
same units increased in a modular fashion."11 [11] AMS's Response to Items
for Discussion Control Number A-T-TA-MS-3 at 1.

We have reviewed the AMS proposal and its responses to IFDs A-T-TA-MS-3 and
-7 and find no basis to conclude that the agency unreasonably evaluated the
AMS proposal or that it ignored data supplied by the protester.
Specifically, the record supports the agency finding that AMS provided the
overall system [deleted] for its proposed system but no component [deleted].
While these component [deleted] may be, as the protester explains,
incorporated into the underlying data and part of the computer program used
to generate the computerized flow charts of the overall system [deleted],
they were not provided to the agency, as requested. Additionally, contrary
to the protester's assertions, the data supplied does not contain [deleted]
calculations for, among other things, pumps or [deleted]. We note that,
while the protester makes the blanket statement that it provided this
information, and specifically referenced its responses to several IFDs, the
protester never indicates where in the more than 20 pages referenced it
included the information the agency says is lacking. As noted above, it is
the offeror's responsibility to prepare an adequately written proposal; and
an offeror runs the risk of having its proposal rejected if it fails to do
so. Cook Travel, supra at 6.

With respect to the protester's statement that the [deleted] of its
[deleted] is based on a [deleted] of its [deleted] unit, the agency points
out that, while the protester's [deleted] unit is not defined in the
proposal, it is approximately 1/30th the capacity of the proposed system.
Because it was not known whether the system would behave in a linear fashion
if it were scaled up, the agency properly assigned an increased risk for
this element. Finally, and again contrary to the protester's assertion,
while AMS did clarify its [deleted] motor size in its response to IFD
A-TA-MS-7, AMS did not provide any supporting data. Rather, the protester
provided a characteristic curve to suggest that its system's power
consumption decreases to 36 [kilowatts] Kw when operating under [deleted].
However, AMS offers no calculations or data to support this assertion other
than a manufacturer's chart with what appears to be a hand-drawn line
inserted by the offeror showing the power level AMS says it can achieve.
Based on this information, the agency reasonably assigned the AMS proposal a
disadvantage rating.

Similarly, AMS complains that the evaluated disadvantage relating to PD
sect. 3.1.1 was improper. This PD outlined the water quality standards that the
purification system was to meet and specifically stated that, among other
things, the system shall meet the standards given in the Tri-Service Field
Water Quality Standards and that the system shall be capable of purifying
nuclear, biological and chemical (NBC) contaminated source water.

The agency found an increased risk that AMS's proposed system might not meet
the water quality standards, Evaluation Work Sheet at 6, and in its report
cited, among other deficiencies, the fact that AMS had provided test results
in a report from [deleted], a consulting firm that had performed a 1997 test
of the [deleted] unit, for only 3 of the 18 contaminants listed in the
Tri-State Standards.

While AMS argues that, in fact, its proposed system produces water that is
of greater purity than what is required by the RFP and that its data was
sufficient, the protester never specifically rebuts the agency's assessment
that AMS failed to provide data for 15 contaminants, and it does not point
to anything in its proposal that suggests that it did report on all 18
contaminants. Our review of the report shows that there is no information
relating to test results for arsenic, cyanide, Lindane or sulfate and, in
fact, the protester's cover letter attached to the [deleted] report
specifically states that "[t]he contamination with Lindane is not mentioned
in the report." Response to Items for Discussion (IFD) Control Number
A-T-TA-DB-1 at unnumbered page 1. Under these circumstances, we have no
basis to object to the agency's assignment of a disadvantage.

Finally, the RFP requires that the noise level of the proposed system "shall
not exceed 85 [decibels] dB(A) at the operator's position." RFP, PD
sect. 3.4.4.2 Noise Limits. In IFD A-T-TA-RA-02, TAMCO asked AMS to "provide the
actual noise test data from the [deleted]." In response, AMS stated that
"[a]ctual noise level measurements on the [deleted] without additional
housing resulted in 108 dB(A)" and that:

Taking in consideration that

-[deleted] being located inside the [deleted]
-[deleted] housing end thickness of 0.4"
-shell thickness of 0.25"
-distance to the operator's position of approx[imately] 100"
-use of sufficient insulated and noise absorbing material

a noise level of approx[imately] 74-75 dB(A) at the operator's position can
be achieved.

Response to Items for Discussion [IFD] Control Number A-T-TA-RA-02 at
unnumbered page 2.

TACOM assigned a disadvantage on this requirement because the proposed
[deleted] has a noise level of 108 dB(A). In its report, TACOM stated that
AMS's claim of a noise level of 74-75 dB(A) was not supported by data,
calculations or test results, as required by section L.11.2 of the RFP. The
agency also states that, while AMS proposed an "enclosure," the enclosure
was not well defined in the proposal and AMS "failed to identify the
material or thickness that would be used for noise insulation . . . ."
Contracting Officer's Statement para. 38.

AMS argues that the assessment is unreasonable and that "TACOM assigned the
disadvantage based on the 108 dbA figure in AMS' IFD response, not because
of any allegation of lack of data." Protester's Comments, November 27, 1998,
Exhibit 1 at 37. In any event, the protester asserts that it supplied the
data in its IFD response.

Contrary to the protester's assertion, there is no supporting documentation
in its response to this IFD which substantiates AMS's claim that it can
achieve the required 85 dB(A) noise level. In AMS's response, the protester
included the narrative, quoted above, stating that it could achieve the
noise requirement, a two-dimensional sketch showing the location of the
maximum sound from the [deleted], a sound report from [deleted], reporting
the 108 dB(A) sound level and a fan performance curve, which AMS does not
explain. AMS simply does not provide any supporting data for its assertion
in any of these submissions. In sum, we find unobjectionable the agency's
assessment of the numerous disadvantages associated with the AMS proposal.

The protester also alleges that the procurement was flawed because offerors
did not propose technical solutions on a common basis. To support this
allegation, the protester points to the different micron screen models and
sizes that were proposed by the offerors. Supplemental Protest at 2.

As noted above, the solicitation contained primarily performance
specifications, which set forth the agency's performance, rather than
particular design requirements. Such specifications do not require that the
offeror meet a specific design requirement, but allow each offeror to
propose solutions that they feel will best meet the specified performance
needs. Isratex, Inc., B-253691, Oct. 13, 1993, 93-2 CPD para. 221 at 3. The RFP
contained no specification that required offerors to propose a specific size
micron screen, hence, offerors were free to propose the size they determined
would best meet the performance requirements. Under these circumstances, we
see no basis for objection.12 [12]

Finally, the protester argues that TACOM treated it unfairly and "made it
more difficult for AMS than for all other offerors to compete in this
procurement." Supplemental Protest at 4. To support this allegation the
protester argues that the agency required AMS to submit more technical
information and data than the other offerors, and specifically states that
"TACOM did not require any of [the other offerors] to submit 'data
documenting the maintenance of the system'" or the test data used to produce
their computer models. Id. at 5.

In response, the agency explains that, regardless of the technology
proposed, disadvantages were assessed against all offerors who failed to
provide the required documentation, noting that four offerors, in addition
to the protester, were assessed as having a disadvantage of increased risk
of not meeting the maintainability requirements because they did not provide
data documenting the maintenance of all or part of their proposed systems.
As to computerized models, the agency reports that none of the offerors were
asked for any information that was not outlined in section L.11.2.1 of the
RFP. The agency also points to numerous instances where other offerors were
assessed disadvantages for failing to provide supporting data. Additionally,
the agency notes that the computer models submitted by the other offerors
are sophisticated mass transfer models created by RO membrane manufacturers.
These models are published with the fundamental design equations and
assumptions. In contrast, AMS's proposed system is, as the protester itself
admits, newer technology. Published data supporting the performance of the
system is apparently unavailable, or, if available, was not submitted to
TACOM by the protester. In short, there is no evidence that AMS was
subjected to different or unequal treatment by the agency.

In view of AMS's low ranking, which was reasonably based on the material
dimensional noncompliance and the significant informational deficiencies
associated with AMS's proposed purification system, the agency reasonably
eliminated the proposal from the competitive range.

The protest is denied.

Comptroller General
of the United States

Notes

1. Because the solicitation was issued prior to January 1998, the recent
rewrite of Part 15 of the Federal Acquisition Regulation (FAR) that changed
the language governing competitive range determinations does not apply. The
prior language, applicable here, provides that the competitive range "shall
include all proposals that have a reasonable chance of being selected for
award" and that "[w]hen there is doubt as to whether a proposal is in the
competitive range, the proposal should be included." FAR sect. 15.609(a) (June
1997).

2. Phase one of the acquisition is for the engineering and manufacturing
development (EMD) of the water treatment unit; phase two is for the
production of approximately 500 units. RFP sect. A-3, Executive Summary, para.para. 2
and 3. According to the agency, EMD is the last stage of research and
development and is used to verify that a proposed design meets the technical
and operational requirements and is ready to enter production. Contracting
Officer's Statement para. 16.

3. The agency explains that this strategy is designed to require a
participating large business to partner with a small business. Contracting
Officer's Statement para. 4.

4. Section 3.1.1 outlined the requirements for water quality standards;
3.1.2 outlined requirements for flow rate; 3.1.3 listed weight restrictions;
3.1.4 and 3.1.5 gave containerization and operational requirements; 3.1.7
provided intake requirements; and 3.1.11 listed required disinfectant
capabilities. Section 3.2.6 outlined required fuel and power interfaces and
section 3.2.11 listed water quality and flow monitoring requirements.
Section 3.3.1 listed the requirements related to nuclear, biological and
chemical contamination (NBCC) survivability; 3.3.4 provided the
environmental conditions the proposed unit should tolerate; and 3.3.6
specified, among other things, that the unit was to be resistant to
corrosion, moisture, fungus and oxidation.

5. The PD specified that minimum acceptable performance threshold
requirements were indicated with the word "shall" and that capabilities that
the agency desired but were not mandatory were indicated with the words
"should," "desired," or "desirable." RFP, PD sect. 3.1.

6. As relevant here, a rating of "good" (low to moderate risk) was assigned
to a proposal which demonstrated a sound approach which was expected to meet
all requirements and objectives and contained solutions which were
considered feasible, practical, clear and precise and were supported. A
"marginal" rating (moderate to high risk) was assigned to a proposal which
demonstrated an approach which may not be capable of meeting all
requirements and objectives and contained solutions which may not be
feasible and practical, lacked clarity and precision and were generally
unsupported. A "poor" rating (high risk) was assigned to a proposal which
demonstrated an approach which would not be capable of meeting all
requirements and objectives because it contained solutions which were not
feasible and practical, lacked clarity and precision and were unsupported.
Source Selection Plan at 17-18.

7. For example, the agency noted an increased risk of not meeting: (1) the
water quality standards requirements because [deleted] will not remove all
organic contaminants from the feed water; (2) the flow rate requirement
because the calculations for sizing of [deleted], pumps and [deleted] were
not provided; (3) the maintainability requirement because, among other
things, the [deleted] and [deleted] will be difficult to repair in the
field, and the proposal contained no data documenting the maintenance of the
system when operating on a natural water source; and (4) the noise
requirement because the offeror did not provide noise data for any system
components other than the [deleted]. The agency assigned high risk ratings
for AMS's proposed system because the system exceeded the height and width
requirements and would not fit inside the specified shipping container or on
the bed of a 5-ton truck, as required by the solicitation. The agency also
assigned the proposed system a high risk rating because the evaluators
determined that it would be difficult to deploy. The agency assigned a
disadvantage and moderate risk assessment on meeting the milestone schedule
and producibility because of the large geographical distance between AMS and
[deleted], a [deleted] firm which is AMS's proposed subcontractor.
Evaluation Work Sheet.

8. The two highest-rated proposals in the competitive range were assigned
adjectival ratings of "good" on each of the three technical evaluation
criteria. None of the five competitive range proposals received less than an
"adequate" rating under any of the technical evaluation criteria.

9. AMS argues that our decision in Univox California, Inc., B-210941, Sept.
30, 1983, 83-2 CPD para. 395, where we sustained a protest concerning the Army's
acquisition of a RO water purification system, is especially relevant here.
We disagree. In Univox, the protester argued that the agency's evaluation of
its proposed system was improper because the agency misread its proposal and
test reports, relied on unverified and erroneous data obtained from sources
other than the procurement record, and ignored data contained in the Army's
own files. We sustained the protest because we found that the procuring
agency ignored the data Univox had submitted with its proposed RO system and
relied on data it generated itself. Additionally, the Army did not explain
its own calculations or submit documentation to support its contentions,
while the protester fully documented its position. Here, in contrast, the
agency did not generate its own data but used the data supplied by the
protester to evaluate the protester's proposed system. Moreover, the agency
has submitted its complete evaluation record and explained and justified its
evaluation to rebut the protester's allegations.

10. 0As noted above, in its several submissions to this Office, AMS
challenges every disadvantage cited by the agency in its evaluation of the
protester's proposal; TACOM responded to each argument, explaining and
justifying its evaluation of the proposal; intervenors responded as well.
While we will not discuss all of AMS's allegations, we have reviewed them
all and, as illustrated by the examples discussed, we find them without
merit.

11. 1The reference to "[deleted] units" refers to [deleted] smaller
[deleted] system. The [deleted], offered here, is based, in part, on the
[deleted] system.

12. 2Moreover, to the extent that the protester is arguing that the RFP
requirements lack specificity, the protest issue is untimely because, under
our Regulations, a protest based upon alleged improprieties in a
solicitation which are apparent prior to the time set for receipt of initial
proposals must be protested prior to the time set for receipt of initial
proposals. 4 C.F.R. sect. 21.2(a)(1) (1998).