BNUMBER:  B-281384; B-281384.2           
DATE:  February 3, 1999
TITLE: Bulova Technologies LLC, B-281384; B-281384.2, February 3,
1999
**********************************************************************

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:Bulova Technologies LLC

File:B-281384; B-281384.2          
        
Date:February 3, 1999

Glenn A. Rowley, Esq., John E. McCarthy, Jr., Esq., and Donald E. 
Sovie, Esq., Crowell & Moring, for the protester.
Larisa A. Trainor, Esq., Anne B. Perry, Esq., and Louis D. Victorino, 
Esq., Fried, Frank, Harris, Shriver & Jacobson, an intervenor.
Larry Brady, Esq., Gerald T. Williams, Esq., and Maj. Cynthia M. 
Mabry, U.S. Army Materiel Command, for the agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Allegation that protester would have been able to eliminate 
certain deficiencies in the portion of its proposal related to a 
certain item, had the agency made predecessor contract information 
available, is untimely where first raised after closing time for 
receipt of proposals and protester knew that the item had been used 
under prior contract (and actually requested that the item be provided 
as government-furnished equipment), but neither requested information 
about the item, nor protested its omission from the solicitation prior 
to the closing time. 

2.  Protest that agency improperly considered offerors' experience in 
manufacturing specific item being acquired is denied where evaluation 
factors encompassed consideration of such experience.  

3.  Protest that evaluation improperly was based on unstated 
criteria--methodology to mitigate component obsolescence of a specific 
component--is denied where, contrary to protester's position, record 
indicates that evaluation was conducted on basis of general 
methodology to mitigate component obsolescence, as provided for in 
solicitation, and protester failed to present a plan in this area.

4.  Protest that agency improperly evaluated protester's price 
assumption--that component parts will function properly when 
manufactured to technical data package and assembled--as inconsistent 
with solicitation is denied, where solicitation specifically provided 
that contractor was not to assume that all possible combinations of 
tolerances and fits permitted by specifications/drawings would 
consistently satisfy test requirements. 

5.  Where solicitation advised offerors that government intended to 
make award on basis of intitial proposals, contracting agency was not 
obligated to conduct discussions concerning protester's proposal, 
which was rated marginal with significant weaknesses based on 
omissions/informational deficiencies. 

DECISION

Bulova Technologies LLC protests the award of a contract to KDI 
Precision Products, Inc. under request for proposals (RFP) No. 
DAAE30-98-R-0310, issued by the Department of the Army for production, 
testing, load, assembly, pack, and delivery of M734A1 fuzes used in 
120mm mortar systems.[1]  The protester challenges the evaluation and 
award on several grounds.  

We deny the protest.

The RFP, which limited competition to small businesses, provided for 
award of a fixed-price contract on a best value basis, applying the 
following four evaluation factors, in descending order of importance:  
(1) quality, (2) cost, (3) management, and (4) past performance.  In 
the actual evaluation, quality was weighted at 50 percent, cost at 25 
percent, management at 15 percent, and past performance at 10 percent.  
The quality factor included three subfactors--manufacturing process, 
technical capabilities and facilities/capital equipment.  The 
management factor included two subfactors--program management and 
configuration management.    The RFP provided that quality and 
management were to be assigned color ratings of blue, green, yellow, 
or red and assessed for proposal risk using the ratings of low, 
moderate, and high.[2]  Past performance was to be evaluated using the 
same adjectival risk ratings.  RFP  sec.  M.1, M.3-M.6, at 84-92.  Cost 
was to be evaluated by adding the price for the basic year (first 
article and production quantity) to the total of all evaluated prices 
for all option years.  The solicitation provided that the "Government 
intends to award without discussions" and, therefore, "[e]ach initial 
offer should contain the offeror's best terms."  RFP  sec.  M.2, at 85.

The statement of work consisted of a CD-ROM technical data package 
(TDP) with requirements and drawings which were described as 
"defin[ing] the effort required" and were to be used "as the approved 
Product Baseline documentation . . . within the overall context of the 
configuration management control authority" provided for in the 
solicitation."  RFP  sec.  C.1, C.2, at 5.  

The agency received two proposals, from Bulova and KDI, who is the 
incumbent.  For the subfactors under the quality and management 
factors, Bulova received primarily yellow ratings, defined as 
"Marginal" - "Fails to meet evaluation standards; however any 
significant deficiencies are correctable."  RFP  sec.  M.4, at 87.  KDI 
received primarily green ratings, defined as "Acceptable" - "Meets 
evaluation standards and any weaknesses are readily correctable."  Id.  
KDI's proposal risk was evaluated as low, with low risk ratings in all 
quality and management subfactors, while Bulova's proposal risk was 
evaluated as high, with high risk ratings in three of the five 
subfactors (along with one moderate and one low rating in the other 
two).[3]  Id.  Both offerors received a low risk rating for past 
performance.

KDI's total evaluated price was $225,670,895, approximately [deleted] 
percent higher than Bulova's at $[deleted].  The contracting officer 
determined that discussions were not necessary, because they would not 
eliminate concerns about Bulova's high proposal risk in the quality 
and management areas.  The contracting officer performed a 
price/technical tradeoff analysis and determined that KDI's proposal 
represented the best value to the government.  Award was made to KDI 
on September 25, 1998.

Bulova challenges the evaluation on several grounds.  In reviewing a 
protest against an agency's evaluation of proposals, we will examine 
the record to determine whether the agency's judgment was reasonable 
and consistent with the stated evaluation criteria.  ESCO, Inc., 
B-225565, Apr. 29, 1987, 87-1 CPD  para.  450 at 7.  The protester must 
demonstrate that the evaluation was unreasonable, a burden that is not 
met by mere expressions of disagreement with that evaluation.  CH2M 
Hill, Ltd., B-259511 et al., Apr. 6, 1995, 95-1 CPD  para.  203 at 4.  We 
have examined the evaluation here and conclude that it was both 
reasonable and consistent with the evaluation criteria.  We discuss 
some of Bulova's key arguments below.

QUALITY

Testing and RF Tester

The RFP specified the required tests (for conformance to the 
performance specification), test parameters, and requirements for 
special test equipment, such as the RF tester, to be designed by the 
offeror.  Detail Specification M734A1 DTL12973560  sec.  4.1, 4.4.3.1, at 
8, 68.  
      
Bulova argues that the agency improperly failed to release predecessor 
contract documentation relating to the RF tester and necessary to 
respond to the solicitation, and that this resulted in an unequal 
competition because KDI, as the incumbent, had access to this 
documentation.  According to Bulova, if it had received a complete RF 
tester technical package, "it would have been able to propose a[n] RF 
Tester which met the Government's requirements."  Supplemental 
Protest, Dec. 4, 1998, at 7.  The protester complains that, without 
the existing RF tester data, it had to design an RF tester, including 
drawings, from "scratch," which "divert[ed] resources" and "affected 
many of the alleged deficiencies" as evaluated in its proposal.  
Comments, Dec. 24, 1998, at 33; Supplemental Comments, Jan. 13, 1999, 
at 15-16.  

Under our Bid Protest Regulations, 4 C.F.R.  sec.  21.2(a)(1) (1998), 
protests based on alleged solicitation improprieties must be filed 
prior to the closing time for receipt of initial proposals.  East Penn 
Mfg. Co., Inc., B-261046, Aug. 1, 1995, 95-2 CPD  para.  50 at 3.  This 
requirement is intended to enable the procuring agency to decide an 
issue while it is most practicable to take effective corrective action 
where the circumstances warrant.  Mead Data Central, B-242598, Mar. 
26, 1991, 91-1 CPD  para.  330 at 3.  Although the record shows that Bulova 
was aware that there was an RF tester that had been used under the 
predecessor contract (see n.5 below), and that the agency would 
"assess the offeror's knowledge and capability to fabricate the M734A1 
RF tester," RFP  sec.  M.6.1 at 89, it never asked the agency to provide 
this information.  Instead, Bulova opted to prepare a proposal that, 
it now asserts, contained deficiencies/weaknesses in the RF tester 
area that could only have been eliminated with reference to the 
predecessor contract information.  While Bulova perhaps was unaware of 
the precise documents available until after award, Bulova does not 
assert that it had reason to believe that no information relative to 
the RF tester existed prior to the closing time, and there is nothing 
in the record to support such an assumption.[4]  (We note that Bulova 
did request other specific engineering change proposals, requests for 
waivers, and drawings which were not included in the TDP.  See Agency 
Report, Dec. 1, 1998, Tab. 28--Correspondence between Bulova and the 
Army.)  Under these circumstances, Bulova should have sought RF tester 
information from the Army prior to the closing time, or protested its 
absence from the RFP package some time prior to the closing time.  
Because it failed to do so, this aspect of the protest is untimely and 
will not be considered.[5] 

In any event, it is not apparent how the predecessor contract 
information in question would have improved Bulova's evaluation.  
According to the Army, "Bulova was not criticized directly for their 
proposed RF Tester design," but rather because the firm "provided a 
general description of a proposed RF tester with no narrative on how 
it will interface with the fuze or discussion relating to fuze test 
requirements" and "fail[ed] to demonstrate [how] their RF Tester could 
support the required production rates."  COSF, Dec. 1, 1998, Attach. 
1, at 17, and Attached Memorandum, Nov. 25, 1998, at 2.[6]  The agency 
concludes that the "[a]vailability of RF Tester documentation and/or 
an RF Tester would not have rescued Bulova from these criticisms."  
Supplemental Contracting Officer's Statement of Facts (SCOSF), Dec. 
16, 1998, Attached Response, Dec. 15, 1998, at 3.  Moreover, while the 
protester focuses on the RF tester, the record indicates that most of 
the evaluated deficiencies in the quality area related to Bulova's 
broad failure to address the test requirements, which are unrelated to 
the RF tester.[7]  In this regard, despite RFP instructions stating 
that offerors were to provide a "[d]etailed narrative" which 
"[d]emonstrate[s] a detailed understanding" of the processes and 
testing required under the RFP ( sec.  L.13.1, at 77-78), Bulova's low 
ratings were based on a finding that the firm failed to "provide a 
complete detailed process flow for the assembly and test of the M734A1 
fuze, particularly sub-assembly test requirements in the fuze 
specification."  Business Clearance Memorandum, Sept. 15, 1998, at 13; 
Risk Analysis, Aug. 19, 1998, at 2.  Essentially, the technical 
evaluation team (TET) determined that Bulova failed to address or even 
list all the required tests of the fuze.  SCOSF Dec. 16, 1998, 
Attached Response, Dec. 15, 1998, at 3.[8]  For example, the agency 
found that "Bulova's proposal does not address the required air 
pressure tests for the electronic head assembly," a test with no 
apparent relation to the RF tester; Bulova does not rebut this agency 
finding.  Business Clearance Memorandum, Sept. 15, 1998, at 14; Risk 
Analysis, Aug. 19, 1998, at 3.  We conclude that Bulova has not 
established that its lack of predecessor contract documentation 
related to the RF tester caused its evaluated weaknesses.

Bulova also argues in this area that the Army improperly evaluated its 
proposal under two allegedly unstated RF testing criteria---the 
"[r]equirement to demonstrate knowledge of the unique residual delay 
cancellation feature necessitating special test capability in the 
Proximity Fuze RF Tester," and the requirement "to address the 
necessity for unique features for the RF Tester."  Protest, Oct. 26, 
1998, at 7 and Attach. 3.   

The agency states that "Bulova was not penalized directly for [the] 
absence of discussion of residual delay" (a factor "below which the 
time delay [of the fuze] cannot be reduced").  COSF, Dec. 1, 1998, 
Attach. 1, at 17.  Rather, according to the agency, Bulova's "[l]ack 
of addressing residual delay line cancellation [in the proposed RF 
tester design] was discussed during the debriefing as one example of 
where Bulova's proposal contained omissions that when combined with 
other omissions and errors led the government to question Bulova's 
ability to manufacture the M734A1 fuze within the program timeliness 
of the solicitation," and "demonstrate[d Bulova's] lack of knowledge 
in FM-CW ranging systems."  COSF, Dec. 1, 1998, Attached Memorandum, 
Nov. 25. 1998, at 2; Attach. 1, at 17.  According to the agency, 
"residual delay line cancellation for such a tester is routinely 
identified and any offeror with knowledge in this area would have 
known to address it."  COSF, Dec. 1, 1998, Attached Memorandum, Nov. 
25, 1998, at 2.[9]  Bulova has not rebutted the agency's explanation 
in this regard, and also has not timely specified any unstated 
'unique' RF tester features against which its proposal was evaluated.  
There thus is no basis to question the evaluation in this area.    

Experience

Under the second quality subfactor, technical capabilities, the RFP 
provided that,  among other things, the government would "assess the 
offeror's knowledge and experience in fuze design and manufacture," 
and instructed offerors to "[d]iscuss previous experience with 
manufacturing of similar items." RFP  sec.  M.6.1, at 89;   sec.  L.13.1, at 78.  
Bulova proposed two electrical engineers and two consultants.   The 
TET determined that no "RF or Proximity Fuze experience" was indicated 
for the electrical engineers, and that the consultants' experience did 
not adequately extend to M734A1 fuzes.  Id. at 4. 

Bulova argues that the Army essentially improperly downgraded its 
proposal based on an unstated evaluation criterion--specific prior 
experience in M734A1 proximity fuze manufacture.  According to the 
protester, this was contrary to the RFP's requirement for generic RF 
fuze experience, which its proposed electrical engineers and 
consultants satisfied.      
 
This argument is without merit.  Agencies properly may take into 
consideration specific, albeit not expressly identified, experience in 
making qualitative distinctions between competing proposals, so long 
as the specific experience is logically encompassed by or related to a 
solicitation's requirements and stated basis for evaluation; 
accordingly, it is not objectionable for an agency to rate a firm that 
has previously supplied the same type of item called for under a 
solicitation higher than a firm with more general experience.  
Fidelity Tech. Corp., B-258944, Feb. 22, 1995, 95-1 CPD  para.  112 at 2-3.  
Here, while the RFP did not specifically require a firm to have 
manufacturing experience with the M734A1 proximity fuzes, the 
solicitation is for the manufacture of those fuzes and did provide 
that experience with manufacture of similar fuzes would be considered.  
Under these circumstances, offerors' specific experience with M734A1 
proximity fuzes clearly was encompassed by the terms of the 
solicitation, and the agency properly considered this experience.  See 
id. (agency properly scored firm with prior experience in performing 
exact work called for under RFP higher than protester).[10]

MANAGEMENT 

Component Obsolescence 
 
Under the management subfactor, program management, "the offeror's 
proposed approach to mitigate component obsolescence" was one of five 
areas to be evaluated.  RFP  sec.  L.13.3, M.6.3, at 80, 91.  In this 
regard, the RFP specifically instructed offerors that "[a]s a minimum 
the following points," including "efforts to mitigate component 
obsolescence," "shall be addressed."  RFP  sec.  L.13.3, at 80.  In this 
area, Bulova's proposal consisted of one paragraph, and in pertinent 
part stated the following:

     From its experience with the M762 program, Bulova believes
     the M734A1 active electronic devices have the greatest threat
     of component obsolescence.  These threats have been mitigated
     by the technologies selected for each of the active devices.  For
     example, the signal processor has been implemented in an 
     analog-switched capacitor technology.  Analog components
     typically do not suffer from fabrication process obsolescence
     problems that digital components experience.  Consequently,
     custom analog components are typically available long after
     custom digital components of the same vintage become 
     completely unavailable. . . .  As a result, no functional 
differences
     will be apparent as the manufacturing processes and the
     device geometries change.

Bulova Management Proposal  sec.  3.1.4, at 3. 

Under this subfactor, Bulova's proposal received a yellow rating and a 
"significant weakness" based on the lack of "a methodology to mitigate 
component obsolescence," and the firm's "reliance on the current 
M734A1 Fuze electronic design to be the solution to component 
obsolescence [was determined] unacceptable."  Risk Analysis, Aug. 19, 
1998, at 4; see also Technical Evaluation, Aug. 11, 1998, Caucus 
Rating and Rationale Summary, at 1, and Approved Strengths and 
Weaknesses, at 1.  Bulova's proposal also received a high risk rating 
based on the "failure to address a management methodology for the 
continued prevention of component obsolescence .  .  . which adds 
significant risk to the option year schedules and potentially leaves 
the government with an obsolete fuze design at the end of the 
multi-option contract."  Caucus Rating and Rationale Summary, at 
1.[11]  The agency characterized  the impact of the high risk rating 
as follows:  

     The M734A1 design contains several complex electronic components 
     that are only available from one source, namely the Signal 
     Processor and the MMIC Integrated Circuits [IC].  Integrated 
     circuit suppliers utilize Foundries (sub-vendors) to fabricate 
     the necessary wafers and these foundries often change their 
     processes to stay competitive with the commercial marketplace and 
     advancing technology.  In any event, changes to the Foundry's 
     processes typically dictate a requalification of the part and may 
     lead to availability problems with the components.  A recent 
     design translation required by the MMIC vendor to stay compatible 
     with their Foundry required a 18-24 month lead time and a 
     $500,000 cost.  Proper planning with the Fuze Manufacturer and 
     the IC vendors resulted in an execution plan that prevented any 
     program slippage.  Issues like this can cause a significant, 
     unexpected program delay if not properly monitored.  The 
     predecessor to this program, the M734 Basic fuze, experienced 
     schedule delays and plant shutdowns due to component obsolescence 
     issues.  In addition, the government requires that the contractor 
     monitor these issues and suggest product improvements to keep the 
     overall fuze design from becoming obsolete over the course of the 
     five years (Basic + 4 Options) of contract performance.

Risk Analysis, Aug. 19, 1998, at 4-5; see also Business Clearance 
Memorandum, Sept. 15, 1998, at 15. 

Essentially, the protester argues that the agency improperly evaluated 
the firm's proposal based on an unstated requirement to mitigate the 
obsolescence risk of the MMIC, one of the fuze components, based on 
problems encountered under the incumbent contract.  According to the 
protester, "[i]f [it] had known MMIC obsolescence was a key concern of 
the Government's, [it] would have most certainly addressed this issue 
in its proposal."  Supplemental Protest, Dec. 4, 1998, at 5.

This argument is without merit.  The Army explains that the evaluation 
of Bulova's approach to mitigating component obsolescence was based, 
not on any particular component, such as the MMIC, and that the 
evaluation discussion quoted above, and relied on by the protester, 
was intended to be merely illustrative.  Rather, Bulova's proposal 
rating in this area was based on the firm's reliance solely on its 
expressed view that it was unlikely the technologies set forth in the 
solicitation would lead to an obsolescence problem, in lieu of a plan 
of its own to mitigate component obsolescence.  According to the 
agency, this was inadequate given the RFP's specific request for 
offerors to address mitigation of component obsolescence.  In this 
regard, the agency asserts that it "was looking for the offeror to 
acknowledge that potential component obsolescence issues exist and 
provide a management technique for alerting the Government of these 
issues prior to them becoming problems with schedule and cost impact."  
SCOSF, Dec. 16, 1998, at 3.[12]

The evaluation of component obsolescence was reasonable.  There is no 
indication that Bulova's proposal was downgraded for failure to 
discuss the mitigation of MMIC obsolescence.  Rather, it is clear from 
the record, as the agency explains, that Bulova's proposal was 
evaluated as deficient for failing to discuss mitigation of any 
component obsolescence and that the discussion of MMIC component 
obsolescence in the evaluation record was merely illustrative.  More 
specifically, given the agency's disagreement with Bulova's view 
regarding component obsolescence and the protester's failure to 
establish that the agency's position is incorrect, we think the agency 
reasonably downgraded Bulova's proposal for failing to specifically 
address the matter of mitigating component obsolescence.[13]

PRICE ASSUMPTION REGARDING COMPONENT PARTS 

Bulova's price proposal stated as follows:

     The costs for the proposal were prepared with the assumption that 
     the technical data package and its related documents will produce 
     a unit that will properly function when Bulova assembles the 
     components utilizing proper manufacturing techniques.

Bulova Cost Proposal at 1.  However, a drawing in the RFP's TDP 
package stated as follows: 

     The contractor will not assume, nor does the government guarantee 
     that all possible combinations permitted by the tolerance limits 
     of the specifications and drawings will consistently satisfy the 
     test requirements.  Therefore the manufacturer is obligated to 
     choose those combinations of tolerance and fits within the limits 
     of the specification and drawings that best suit his process 
     needs and still satisfy the requirements.

Risk Analysis, Aug. 19, 1998, at 3, quoting RFP TDP, Drawing No. 
12973560, n.11.  The TET determined that Bulova's assumption 
represented a "significant discrepancy" from the TDP drawing for the 
top assembly of the M734A1; this was one of five factors which led to 
Bulova's proposal being rated high risk.  Risk Analysis, Aug. 19, 
1998, at 1-3; Business Clearance Memorandum, Sept. 15, 1998, at 14.  
The Army's rationale in this regard was set forth as follows:

     Test requirements of proximity fuzes are very complex in nature 
     and require engineering throughout a production program.  The 
     functionality of a random mix of signal processors, MMIC 
     transceivers, Turbine Alternators etc. can not be assumed to 
     always produce fuzes that meet the test requirements, 
     particularly in high volume production when electronic part 
     variability increases.  Bulova's assumption combined with their 
     lack of proposed RF engineering support demonstrates significant 
     cost and schedule risk to the government and in Bulova's ability 
     to perform within their proposed pricing.

Risk Analysis, Aug. 19, 1998, at 1-3; Business Clearance Memorandum, 
Sept. 15, 1998, at 14.  
       
Bulova argues that its "innocent pricing assumption" "does no more 
than state [its]  belief and reasonable expectation that the 
fundamental design of the M734A1 will work," and "does not in any way 
contradict the notice found in the technical data package," or "in any 
way deny Bulova responsibility for production of the fuze in 
accordance with the technical data package."  Comments, Dec. 24, 1998, 
at 47 and 22.  In any case, the protester characterizes this area of 
evaluated deficiency as a "part variability [problem] between the 
signal processors and the MMIC chips," which has been resolved by 
"deviations, waivers and drawing changes [that] had been promulgated 
to address and resolve this issue" and that, thus, in actuality, the 
agency criticized Bulova's proposal for failing to address a 
corrected, nonexistent problem.  Supplemental Protest, Dec. 4, 1998, 
at 8. 
 
The evaluation in this area was reasonable.  First, we think the Army 
reasonably interpreted the language in Bulova's proposal as 
conflicting with the admonition in the TDP drawing.  Specifically, 
while the drawing expressly provided that the contractor was not to 
assume the correctness of the tolerances in the specifications in 
making its manufacturing decisions, Bulova's price proposal purported 
to be based on the assumption that a properly functioning item will 
result from complying with the TDP.  Whether or not Bulova intended to 
take exception to the TDP drawing language, the quoted language is 
reasonably susceptible of such a reading.  

According to the agency, moreover, the evaluation in this area really 
focused on a broader concern; the "criticism of Bulova in this area 
stemmed from the fact that they did not address generic production 
problems associated with Proximity fuzing," i.e., part 
inconsistencies/variability among vendors, which "is common with 
components required for proximity fuze programs" and is "not unique to 
the M734A1 Proximity Fuze."  SCOSF, Dec. 16, 1998, at 4, 7.  In this 
regard, the agency asserts, while the TET "did not require offerors to 
submit a detailed plan to control part variation, [they] required 
discussion on component parameter variations in order to demonstrate 
an understanding of the fuze operation," and Bulova's proposal failed 
to provide "a qualitative discussion on system parameters," which, 
"combined with the technical omissions and errors, demonstrates that 
Bulova does not have the knowledge or experience needed to 
independently produce M734A1 fuzes that will meet the end item 
performance requirements."  COSF, Dec. 1, 1998, at 16.  The agency 
maintains that Bulova's "interpretation [expressed in its protest 
argument] that all part variability problems between the signal 
processor and the MMIC chips have been resolved and no longer 
represent a problem is incorrect."  SCOSF, Dec. 16, 1998, at 7.  
Rather, according to the agency, "[t]he government continues to try to 
refine the product baseline documentation to reduce the potential of 
these types of issues from impacting the performance of the fuze" and 
Bulova's interpretation is "grounds for further criticism of Bulova's 
knowledge and capability in Proximity fuzing since these issues will 
remain throughout the production life cycle of the item."  Id.  Bulova 
has not shown that the agency's position regarding continued part 
variability is incorrect.  We conclude that the agency reasonably 
determined that this area of Bulova's proposal evidenced performance 
risk.[14]
   
AWARD WITHOUT DISCUSSIONS

Bulova argues that its proposal was downgraded under the quality 
subfactors and assigned a high risk rating based on informational 
deficiencies which could have been corrected through discussions. 

Generally, agencies are not obligated to conduct discussions where, as 
here, the RFP specifically instructs offerors of the agency's intent 
to award a contract on the basis of initial proposals.  Robotic Sys. 
Tech., B-278195.2, Jan. 7, 1998, 98-1 CPD  para.  20 at 11.  Under such 
circumstances, offerors are required to provide in their initial 
proposals all of the information necessary to permit the agency to 
conclude that the proposal meets the solicitation's requirements.  
Norden Sys., Inc.,             B-255343.3, Apr. 14, 1994, 94-1 CPD  para.  
257 at 7-8.  While the contracting officer's discretion in deciding 
not to hold discussions is not unfettered, it is quite broad.  Id.; 
Robotic Sys. Tech., supra.

There is no basis for questioning the agency's decision not to conduct 
discussions.   The RFP specifically advised offerors that the 
government intended to award a contract without discussions, and that 
each initial proposal should contain the offeror's best terms.  RFP  sec.  
M.2, at 85.  Based on the initial proposals received, the Army 
determined that KDI's represented the best value to the government 
based on its technical superiority, low risk, and reasonable price.  
Bulova does not argue that its proposal was technically equal to KDI's 
and does not contest the agency's determination that KDI's proposal 
was clearly superior.  Under these circumstances, the mere possibility 
that Bulova's technical proposal, which was evaluated as substantially 
inferior with significant weaknesses, could theoretically become the 
best value proposal through discussions did not preclude the agency 
from awarding the contract based on initial proposals.  See Harry A. 
Stroh Assocs., Inc., B-274335, Dec. 4, 1996, 97-1 CPD  para.  18 at 3.[15]  

PRICE/TECHNICAL TRADEOFF
    
Bulova also alleges that the price/technical tradeoff was inadequate 
primarily due to the alleged failure to consider the price 
differential between the proposals.  This argument is without merit.  
The record indicates that the TET conducted a detailed "Cost Tradeoff 
Analysis" which "identified[d] the areas that support the difference 
in Risk Assessment of the two offerors."  Risk Analysis, Aug. 19, 
1998, at 1.  The tradeoff focused on Bulova's high risk versus KDI's 
low risk, and the fact that this high risk could lead to unacceptable 
performance delays.  Id. at 1.  Conversely, the TET concluded that 
KDI's low performance risk would enable the firm "to meet the schedule 
within the RFP," because "their proposal addressed all areas of the 
RFP," "they are successfully producing the M734A1 in quantities of 10K 
per month under the [predecessor contract]," and "KDI also presented a 
methodology for monitoring component obsolescence issues with the 
electronic components."  Id. at 1, 5.  In the final analysis, the TET 
recommended that the best value award be made to KDI without 
discussions based on their (1) "distinctly superior . . . overall 
proposal, particularly the technical portion," (2) significantly lower 
risk with no past performance problems on similar contract, and (3) 
the fact that "Technical (Quality/Management) is far more significant 
than Cost (as identified in the RFP) (+10%)."  Id. at 5.  The 
contracting officer considered this recommendation, characterizing it 
as a determination that "the low risk asociated with the somewhat 
higher priced KDI proposal . . . more than compensate[d] for the risk 
of awarding to Bulova which has limited or no experience in producing 
proxmity fuzes and has not set forth a proposal that conclusively 
demonstrates how they can successfully meet all contract 
requirements."  Business Clearance Memorandum, Sept. 15, 1998, at 16.  
Further, the contracting officer determined that "[a]lthough lower 
priced, award to Bulova would likely result in major program delays 
and related expenses due to impact of late deliveries."  Id. at 16.  
Based on these considerations, the contracting officer determined that 
"KDI has presented a distinctly superior proposal . . . significantly 
lower in risk than Bulova and recommended that a best value award be 
made to KDI for the basic production year in the amount of 
$11,665,850.64."  Id.  

Contrary to the protester's position, the documentation of the 
tradeoff was clearly adequate.  The fact that the documentation did 
not specifically mention the [deleted]-percent differential does not 
undermine the fact that the agency weighed the proposals' advantages, 
including schedule risk, against prices.  Further, contrary to the 
protester's allegation that schedule risk was improperly considered in 
the tradeoff, consideration of risk is inherent in the evaluation of 
proposals, Hi-Shear Tech. Corp., B-261206, Aug. 31, 1995, 95-2 CPD  para.  
97 at 4, and thus the agency was not precluded from considering it.  
Finally, to the extent that the protester contends that the agency was 
required to quantify the dollar value of the superior features of 
KDI's proposal, there is no requirement that an agency quantify the 
value of technical superiority in relation to low cost to determine 
the best value to the government.  KRA Corp., B-278904, B-278904.5, 
Apr. 2, 1998, 98-1 CPD  para.  147 at 14; Picker Int'l, Inc., B-249699.3, 
Mar. 30, 1993, 93-1 CPD  para.  275 at 12.  Thus, the price/technical 
tradeoff here is unobjectionable.  

The protest is denied.

Comptroller General 
of the United States

1. The fuze is the "brains" of the overall cartridge, providing both 
safety and arming functions.  Contracting Officer's Statement of Facts 
(COSF), Dec. 1, 1998, at 1.   It is primarily a "proximity fuze," 
which allows it to function in the air at some predetermined height 
above the ground.  In order to accomplish this, it utilizes frequency 
modulated continuous wave (FM-CW) radar technology with Directional 
Doppler Ratio (DDR) ranging signal processing techniques and contains 
custom radar transceiver and signal processing integrated circuits.  
Id.  

2. Low risk was defined as:  "Little potential to cause disruption to 
schedule, increased cost, or performance[; n]ormal contractor effort 
and normal government monitoring will probably be able to overcome 
difficulties."  RFP  sec.  M.5, at 88.  High risk was defined as:  "Likely 
to cause serious disruption of schedule, increased cost, or 
degradation of performance, even with special contractor emphasis and 
close Government monitoring."

3. The specific ratings under the quality and management factors were 
as follows:

       Factors                  KDI:  Rating Risk  Bulova: Rating Risk

       Quality:                                                   

         Manufacturing Process        green  low           yellow 
                                                                  mode
                                                                  ate

         Technical Capabilities       blue   low           yellow high

         Facilities and Capital Equip.blue   low           yellow high

       Management:                                                

         Program                      green  low           yellow high

         Configuration                green  low           green  low

4. Even if we agreed with Bulova that it could not protest the 
agency's failure to provide the predecessor contract documents until 
it learned of the specific documents in the agency's report, this 
aspect of the protest would still be untimely.  Specifically, while 
Bulova generally asserted in its protest that the documents were 
necessary to prepare an adequate proposal, Bulova did not actually 
attempt to draw a nexus between specific documents and evaluation 
deficiencies until it filed its comments on the report which, due to 
an extension granted by our Office, were not filed until December 24, 
which was 23 days after the report was received.  Comments, Dec. 24, 
1998, at 35-37, 38.  The nature of this protest argument is such that, 
without specifics establishing that the documents would have made a 
difference, there would be no basis for sustaining the protest.  Under 
these circumstances, the specifics provided in Bulova's December 24 
comments constituted independent grounds of protest that failed to 
independently satisfy our timeliness requirements.  Brisk 
Waterproofing Co., Inc., B-276247, May 27, 1997, 97-1 CDP  para.  195 at 6.

5. Bulova also argues that the Army improperly failed to make a 
government-owned RF tester (in KDI's possesion) available to the 
protester.  This argument is untimely for the same reason as discussed 
above.  Bulova knew the RF tester existed, and even allegedly asked 
the agency "whether the RF Tester previously used in the production of 
the M734A1 product was government-owned and if so, whether it would be 
made available to the awardee for use."  Protest Clarification on 
Timeliness, Nov. 24, 1998, at 1.  If Bulova believed the RF tester 
should have been made available to it for purposes of equalizing the 
competition, or otherwise, it should have protested the RFP's failure 
to make such provision prior to the closing date.

6. In this regard, the agency explains that "[s]ince testing of 
proximity fuzes is complex and time consuming the offeror needed to 
address the M734A1 unique features such as the interconnection process 
of the M734A1 to the RF tester to demonstrate how the RF tester would 
be able to support the required production rate."  Id.   

7. In this regard, we note that Bulova's blanket proposal statement 
that "[a]ll . . . testing will be performed in full compliance to 
DTL12973560" reasonably was deemed inadequate given the RFP's specific 
testing requirements and provision for evaluation of offerors' 
"in-depth understanding" of test requirements.  Bulova Quality 
Proposal, at F1-11; RFP  sec.  L.13.1, at 78.

8. In this regard, the agency noted that "any experienced offeror 
should compare their final proposal to the system requirements and 
confirm that all requirements are properly addressed. . . .  Bulova 
failed to complete this simple task."  Id.

9. In this regard, the agency asserts that the TET "was looking for 
some mention of the need to cancel this delay to meet the RF tester 
requirements specified in the product baseline documentation."  COSF, 
Dec. 1, 1998, Attach. 1, at 17.

10. Bulova complains that, because KDI is the only firm with 
production experience on the M734A1 fuze, only KDI could achieve a low 
risk rating.  However, the agency responds that Bulova could have 
demonstrated directly relevant experience by either proposing 
individuals with such experience or proposing experience with 
proximity fuzes of similar technology, such as the "XM450 Medium 
Altitude Prox Fuze, XM773 MOFA, M732A2 Prox[imity] fuze for artillery 
and the DSU-33 general purpose bomb proximity fuze."  COSF, Dec. 1, 
1998, at 14.  Bulova does not rebut the Army's position.  In any case, 
the agency was not required to compromise its experience requirements 
based on the fact that only one offeror may be able to achieve the 
maximum score.         

11."Lack of a plan to address component obsolescence in Bulova's 
proposal leaves the government at great risk for schedule 
interruptions in the option years" since "[i]t is easily conceivable 
that two interruptions of 4-6 months each over a 5-year period would 
result if this is not monitored adequately."  Business Clearance 
Memorandum, Sept. 15, 1998, at 15.  

12. Further, the agency asserts that "the M734A1 product baseline 
documentation includes several critical components such as the Signal 
Process, MMIC and Turbine Alternator having single sources of supply, 
which further emphasize the necessity of addressing component 
obsolescence issues."  SCOSF, Dec. 16, 1998, at 3.

13. The protester also argues that the agency "placed inordinate 
emphasis on [component obsolescence] in the evaluation," when it "was 
but one of five subfactors within the Program Management Subfactor 
which at best was worth 1.5% in the overall evaluation score."  
However, since this argument was raised for the first time in the 
protester's comments, Comments, Dec. 24, 1998, at 37-38, filed more 
than 10 days after receipt of the agency report which contained the 
information upon which this argument is based, it is untimely and will 
not be considered.  4 C.F.R.  sec.  21.2(a)(2).        

14. As later recast in its comments, the protester acknowledges that 
it did not address part variability in its proposal, but contends that 
part variability was an unstated criterion, since the "the agency 
failed to inform [the firm] that "the design was still in flux and not 
yet stable, and . . . [that] certain additional processes are required 
to deal with the exigencies of the shifting design."  Comments, Dec. 
24, 1998, at 22 and 47; see also Supplemental Comments, Jan. 13, 1999, 
at 16.  Further, the protester raised a specific example of where part 
variability had been allegedly resolved under the prior contract by 
"ma[king] a minor adjustment of the resistor values for resistors R1 
and R3 on the Flex assembly."  Comments, Dec. 24, 1998, at 35 and 47.  
The specifics of this argument were untimely filed more than 10 days 
after receipt of the agency report.  We nevertheless note that, even 
if Bulova were correct that the issue of part variability of one 
component part has been resolved, that certainly would not negate the 
agency's concern with Bulova's price assumption and the on-going issue 
of part variability with all components.  Further, we think the TDP 
drawing did put Bulova on notice that, essentially, the design was not 
stable.

15. In its comments, Bulova for the first time raises specific 
objection to certain  evaluated deficiencies in its proposal.  These 
allegations, based on the evaluation information contained in the 
agency report received by Bulova on December 1, are untimely because 
they were not raised until December 24, more than 10 days later.   See 
Global Eng'g & Constr. Joint Venture, B-275999.4, B-275999.5, Oct. 6, 
1997, 97-2 CPD  para.  125 at 4 n.2.