BNUMBER:  B-281521             
DATE:  February 22, 1999
TITLE: Chant Engineering Company, Inc., B-281521, February 22, 1999
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Matter of:Chant Engineering Company, Inc.

File:B-281521            
        
Date:February 22, 1999

Philip Chant for the protester. 
Susan Spiegelman-Boyd, Esq., Department of the Navy, for the agency. 
Adam Vodraska, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procuring agency reasonably determined that protester's proposal was 
unacceptable and excluded it from the competitive range in a 
solicitation for a commercial item where the protester was not 
offering "commercial off the shelf equipment," as required, but was 
merely offering to fabricate, for the first time after award, 
equipment that met the specification.

DECISION

Chant Engineering Company, Inc. protests the exclusion of its proposal 
from the competitive range under request for proposals (RFP) No. 
N00164-98-R-0064, issued by the Department of the Navy, Naval Surface 
Warfare Center, Crane (Indiana) Division, for a manual 
electro-hydraulic servo valve test station for the Corpus Christi Army 
Depot. 

We deny the protest.

The RFP was issued on May 5, 1998, under the commercial item 
acquisition procedures of Federal Acquisition Regulation (FAR) part 
12.  RFP at 1.  The RFP required the test station (also referred to as 
a stand) to "be commercial off the shelf equipment designed to 
assemble, troubleshoot and test aircraft proportional nozzle type and 
jet pipe type Electro-hydraulic Servovalves with various 
configurations."  Id. at 17.  The RFP included the full text of FAR  sec.  
52.212-4, Contract Terms and Conditions--Commercial Items, which 
incorporates by reference the FAR  sec.  52.202-1 definition of "commercial 
item."[1]  Id. at 6.

Besides requiring the contractor to deliver, install, and 
test/check-out the test station, the RFP requires the contractor to 
provide the full coverage of any standard commercial warranty normally 
offered in a similar commercial sale (and to submit a copy of its 
standard commercial warranty with its offer), to provide commercial 
off-the-shelf operating and maintenance manuals (that "contain 
operation, maintenance, parts lists, and other instructions applicable 
to equipment designed and manufactured for commercial use"), and to 
train government personnel in the operation and maintenance of the 
test station.  Id. at 2, 3, 8, 14, 16-17, Contract Data Requirements 
List exhibit (e).

The RFP contemplated the award of a fixed-priced contract to the 
responsible offeror whose conforming proposal would be most 
advantageous to the government, price, technical capability and past 
performance considered.  Id. at 24.  The RFP established that, for 
evaluation purposes, technical capability was significantly more 
important than past performance and price.  Id.  For technical 
capability, the RFP stated that proposals would be evaluated to ensure 
that the proposed test station, warranty, and training comply with the 
requirements specified in the RFP's performance specification and 
statement of work.  Id.
The RFP informed offerors that their test stations would be examined 
for compliance with the requirements of the performance specification 
and statement of work and that "[a]ny redesign or modification of the 
contractor's standard product to comply with [the] specified 
requirements . . . shall receive particular attention for adequacy and 
suitability."  Id. at 21.

The RFP instructed offerors that their proposals must include a 
technical description of the items being offered in sufficient detail 
to evaluate compliance with the requirements in the solicitation, 
which may include product literature, or other documents, if 
necessary.  Id. at 24.  The RFP stated that "each technical proposal 
shall enable Government evaluating personnel to make a thorough 
evaluation and arrive at a sound determination as to whether or not 
the proposal will meet the requirements of the government."  Id.

The Navy received Chant's proposal, among others, by the June 23 due 
date.  In its proposal, Chant listed the technical requirements in the 
RFP and stated that it would comply with each.  The proposal included 
two drawings of the proposed equipment, and pictures and descriptions 
of other types of equipment that Chant has produced.  Following the 
technical evaluation, the agency determined that Chant's proposal was 
unacceptable as submitted because it was not accompanied by literature 
"that provides the information necessary to make a determination as to 
meeting any of the requirements" of the RFP.  Agency Technical 
Comments, Aug. 1998.  The agency also considered Chant's failure to 
supply warranty information as a deficiency.  Id.  The agency viewed 
correction of these deficiencies as requiring Chant to submit what 
would amount to an entirely new proposal.

Based on Chant's unacceptable technical proposal, the agency 
determined that Chant did not have a reasonable chance of being 
selected for award and excluded its proposal from the competitive 
range.  On October 29, the contracting officer sent Chant a letter 
stating that its proposal had been excluded from the competitive range 
and listing the 47 RFP specification requirements (as well as the 
warranty requirement) for which Chant's proposal provided insufficient 
information "for a thorough evaluation."   The next day, Chant 
requested a debriefing, which was provided by telephone on November 4.  
Chant's protest followed.

Chant contends that its proposal was improperly evaluated, resulting 
in the agency's determination that the proposal was technically 
unacceptable.  Chant complains that other than stating that Chant did 
not supply enough information, the agency has failed to provide 
specifics as to what the deficiencies in its technical proposal were.  
According to Chant, during the debriefing, the agency's technical 
evaluator could not elaborate on the reasons he found Chant's proposal 
unacceptable and merely reiterated several times that Chant, unlike 
other offerors, had failed to supply "color brochures" with its 
proposal.  Chant views the RFP's requirements as being so specific and 
detailed that there was nothing left for Chant to add to its proposal 
other than to reiterate the RFP requirements and state that it "will 
provide" the required features.

The evaluation of proposals and resulting determination as to whether 
a particular offer is in the competitive range are matters within the 
discretion of the contracting agency, since it is responsible for 
defining its needs and determining the best method of accommodating 
them.  Laboratory Sys. Servs., Inc., B-256323, June 10, 1994, 94-1 CPD  para.  
359 at 2.  Where a proposal is technically unacceptable as submitted 
and would require major revisions to become acceptable, the agency is 
not required to include the proposal in the competitive range.  Riveer 
Co., B-279723, July 14, 1998, 98-2 CPD  para.  19 at 4.  In reviewing 
challenges to an agency's competitive range determination, our Office 
does not independently reevaluate proposals; rather, we examine the 
evaluation to determine whether it is reasonable. Tri-Services, Inc., 
B-253608, Sept. 7, 1993, 93-2 CPD  para.  131 at 2.

Here, based on our review of the record, we conclude that the Navy's 
evaluation of Chant's proposal, and the contracting officer's 
determination not to include the proposal in the competitive range, 
are unobjectionable because the statements in Chant's technical 
proposal that Chant's proposed test station will meet the RFP's 
performance requirements, without more, are not sufficient to satisfy 
the RFP's commercial item requirement.  Chant's proposal provides no 
evidence that its proposed test station has at least been offered for 
sale, lease, or license to the general public or that it otherwise 
complies with the FAR  sec.  52.202-1(c) definition of "commercial item."  
Instead of offering "commercial off the shelf equipment," Chant is 
merely offering to fabricate, for the first time after award, a 
customized test station in compliance with the specification (but 
using commercial off-the-shelf components "to the fullest extent 
possible").  Chant Technical Proposal, at 1.  Thus, it is apparent 
from Chant's proposal that its proposed test station is not based on 
any existing, commercially available model.[2]

Although Chant's proposal showed that Chant had designed and 
fabricated several other types of test stations/stands for the 
government, there is no indication in the proposal that these items 
were ever commercially available and that the test station proposed 
here has evolved from any of those items through advances in 
technology or performance and would be available in the commercial 
marketplace in time to satisfy the delivery requirements of this RFP.  
See FAR  sec.  52.202-1(c)(2).  One of the purposes of a solicitation 
requirement for a commercial product is to avoid the design and 
engineering risks associated with new equipment by procuring a 
commercially proven item.  See AUL Instruments, Inc., B-186319, Sept. 
1, 1976, 76-2 CPD  para.  212 at 6.  New equipment like Chant's proposed 
test station, which may only become commercially available as a result 
of the instant procurement, clearly does not satisfy the RFP 
requirement for commercial off-the-shelf (existing) equipment.  See 
Aydin Corp., B-224185, Nov. 28, 1986, 86-2 CPD  para.  625 at 3, aff'd, 
B-224185.2, Feb. 10, 1987, 87-1 CPD  para.  141, recon. denied, B-224185.3, 
Aug. 25, 1989, 89-2 CPD  para.  176; AUL Instruments, Inc., supra.

Finally, Chant alleges that the agency's evaluator may have been 
biased against it as reflected in his comments at the debriefing that 
other offerors had supplied "color brochures" of their products, which 
he preferred, whereas Chant had supplied only black and white drawings 
showing the general layout of the equipment it was proposing.[3]  The 
point the evaluator apparently was making was not that "color 
brochures"--or "company brochures" as he claims to have stated--were 
specifically required, but that Chant did not submit any product 
literature showing that the test station it was proposing was based on 
any commercially available model (with or without modifications) that 
conforms to the RFP's requirements.  The protester has presented 
absolutely no evidence of bias against it, however; it merely infers 
bias based on the exclusion of its proposal from the competitive 
range.  We will not attribute bias in the evaluation of proposals on 
the basis of inference or supposition.  Tri-Services, Inc., supra, at 
6.

The protest is denied.

Comptroller General
of the United States

1. Under FAR  sec.  52.202-1(c), a "commercial item" is defined, in 
relevant part, as:

               (1) Any item . . . that is of a type customarily used 
            for nongovernmental purposes and that--
                 (i) Has been sold, leased, or licensed to the general 
            public; or
                 (ii) Has been offered for sale, lease, or license to 
the general public;
               (2) Any item that evolved from an item described in 
            paragraph (c)(1) of this clause through advances in 
            technology or performance and that is not yet available in 
            the commercial marketplace . . . in time to satisfy the 
            delivery requirements under a Government solicitation;
               (3) Any item that would satisfy a criterion expressed 
            in paragraphs (c)(1) or (c)(2) of this clause, but for--
                 (i) Modifications of a type customarily available in 
            the commercial marketplace; or
                 (ii) Minor modifications of a type not customarily 
            available in the commercial marketplace made to meet 
            Federal Government requirements . . . .
               (4) Any combination of [the above] of a type 
            customarily combined and sold in combination to the 
            general public . . . .

2. Other indicia that Chant's proposed test station is not 
commercially available are Chant's failure to provide a copy of a 
standard commercial warranty and the commercial off-the-shelf 
operating and maintenance manuals required by the RFP.

3. During the debriefing, the protester pointed out to the evaluator 
that other offerors may have to customize their products shown in 
their brochures in order to meet the RFP's requirements.  However, the 
FAR definition of "commercial item" allows for modifications of a type 
customarily available in the commercial marketplace or minor 
modifications of a type not customarily available in the commercial 
marketplace made to meet government requirements.  FAR  sec.  
52.202-1(c)(3)(i), (ii).