BNUMBER: B-281645
DATE: February 24, 1999
TITLE: Stratus Systems, Inc., B-281645, February 24, 1999
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Matter of:Stratus Systems, Inc.
File:B-281645
Date:February 24, 1999
Steven A. Becnel for the protester.
Lawrence E. Kinker for Survival Systems Group USA, an intervenor.
Richard V. Gonzales, Esq., United States Coast Guard, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Contracting agency properly did not give evaluation credit for
undated and general past performance information contained in
protester's technical approach, where request for proposals (RFP)
stated that past performance would be separately evaluated using
detailed past performance criteria for the past 24-month period.
2. Contracting agency's written discussion questions reasonably
apprised protester of the areas of its proposal that the agency
considered deficient, such that the protester should have known and
understood the agency's concerns.
DECISION
Stratus Systems, Inc. protests the award of a contract to Survival
Systems Group USA under request for proposals (RFP) No.
DTCG38-98-R-J00002, issued by the United States Coast Guard for 42
emergency egress lighting systems for the HH60J helicopter.[1]
Stratus principally argues that the agency misevaluated technical and
price proposals.
We deny the protest.
The RFP, issued March 5, 1998, contemplated the award of a fixed-price
commercial item supply contract to the responsible offeror whose offer
conforming to the solicitation would be most advantageous to the
government, price and other factors considered. Agency Report (AR),
Tab E, RFP at 6. The RFP stated that a single award would be made
based on the evaluation factors of technical approach (the most
important factor), past performance and price. Id. Technical
approach (with five subfactors)[2] and past performance each were more
important than price; the RFP stated, however, that price was an
important factor and its importance would increase as the degree of
equality of the proposals increased. Id.
The agency received four offers; following evaluation, one offer was
determined to be yellow/marginally satisfactory from a technical
standpoint and excluded from the competitive range.[3] The evaluators
found that Survival Systems proposed a complete system, which appeared
easy to install and maintain. It took 2-1/2 hours to install the
system, which was designed for easy changing of components, had an
excellent range of visibility, and was powered by relatively
inexpensive battery packs of "C" cell alkaline batteries. Testing of
the system could include actually illuminating the exit lights. This
proposal was rated green/acceptable. Stratus also offered a complete
system, which could be installed within 3-1/2 hours. Its system used
lithium batteries, which are more expensive than normal alkaline
batteries. The evaluators found that testing of Stratus's system
would check the battery, sensor and circuit condition, but would not
illuminate the actual emergency lights; if the lights were illuminated
during testing, they would have to be replaced, at a cost of
approximately [deleted].[4] This proposal nevertheless also was rated
green/acceptable. Following discussions, best and final offers (BAFO)
were received and evaluated.
In its BAFO, Survival Systems was found to have improved the design of
its mounting brackets and backing plates to reduce or eliminate a
potential snag hazard; as a result, its rating was upgraded to
blue/outstanding. Stratus's BAFO offered to provide a de-coupling
module to reduce the risk of maintenance personnel accidentally
activating the inversion sensor. However, because the lights still
would have to be replaced when used (accidently or due to training
needs), and in view of the associated costs, its rating remained
green/acceptable. Survival System offered a price of $275,100; the
protester offered a price of [deleted]. The agency's tradeoff
analysis stated as follows:
The difference in price between the two systems is [deleted]. If
we were to install the Stratus product, the accidental or
intentional illumination of a system more than 56 times over the
life of the airframe would cost more in replacement parts than we
would save in initial acquisition. Assuming a 20 year life, that
would be less than 3 times per year. With 42 aircraft at eight
different air stations, the potential for activation of the
system is far greater than 3 times per year. Other
considerations that favor the [Survival System] product are the
ease of maintenance, the durability of the system, the additional
range of visibility, and the ability of the aircrew to actually
see the system illuminated during testing.
AR, Tab M, Trade-off Analysis at 1. The agency thus awarded the
contract to Survival System; this protest followed.
The protester raises several arguments concerning the evaluation and
award decision, all of which we find to be without merit. We discuss
Stratus's key arguments below.
The protester first argues that the agency failed to adhere to the
evaluation criteria because it did not give adequate credit to the
protester in the area of past performance. The protester states that,
in addition to information about contracts performed within the last
24 months, as required by the solicitation, its proposal included past
performance information in its technical approach. Specifically, the
protester states, this information related to a "host of other
products that Stratus personnel have developed [in more than] 20
years," including products in the general areas of fluid engineering,
chemical engineering, electronic engineering and others. Protester's
Comments at 4. The protester concludes that it should have received a
blue/outstanding rating for past performance.
The evaluation of proposals is a matter within the discretion of the
contracting agency; our Office will question the agency's evaluation
only where it lacks a reasonable basis or conflicts with the stated
evaluation criteria for award. Sytel, Inc., B-277849.2, B-277849.3,
Jan. 8, 1998, 98-1 CPD para. 21 at 7.
We find no basis for concluding that the evaluation was unreasonable
or conflicted with the stated evaluation criteria. The RFP indicated
that only relevant experience during the past 24 months was required
and would be evaluated. The proposal did not indicate, and the
protester does not assert, that the cited additional past performance
items fall within the 24-month period.
Stratus argues that the agency did not adequately apprise the firm of
its concerns about the Stratus product's life cycle costs during
written discussions. Specifically, Stratus complains that when the
agency asked it to provide replacement costs for the lighting system,
Stratus believed the agency was asking about kit replacement, not
individual location replacement; since there are three units in a kit,
according to Stratus, the true replacement cost was [deleted], not
[deleted].
Written discussion questions generated by a contracting agency should
reasonably apprise offerors of the areas that the agency considers
deficient such that the offerors will understand the agency's
concerns. See IT Facilities Servs., B-279585, June 29, 1998, 98-2 CPD para.
16 at 5-7. We have reviewed the questions asked of Stratus by the
agency and find them to be clear. The questions were: "What
components will require replacement in case of accidental activation?
What will the cost of components be?" Stratus's answer was that the
control module, inversion and crash sensor and the light tube would
need replacement at a cost of [deleted]. We think both the agency's
questions and the protester's reply were clear. There was no mention
whatsoever in the protester's response that its answer related to kits
rather than individual location replacement. If the protester meant
something other than what it told the agency in simple and clear
terms, the miscommunication was its own fault and did not reflect a
failure by the agency to provide adequate discussions.
Finally, Stratus argues that the agency is purchasing an inferior and
inadequate technology (LED), which is not capable of the illumination
and range of visibility that its superior solution is capable of
achieving; specifically, Stratus asserts that the agency "has elected
to go with an unproven solution that [it] know[s] has inferior
illumination."[5] Protester's Comments, at 6. The protester insists
that no other system can match its technology, and that the agency
thus should purchase only its product in order to ensure the safety of
its personnel.
We generally will not consider allegations such as this that,
essentially, the government's interest is not adequately protected by
purchasing the product solicited. Assurance that sufficiently
rigorous specifications are used in an RFP is ordinarily of primary
concern to procurement personnel and user activities, since it is they
who must suffer any difficulties resulting from inadequate equipment.
We therefore do not resolve such issues pursuant to our bid protest
function--since use of broadened or less rigorous specifications is
consistent with the requirement for full and open competition--absent
evidence of possible fraud or willful misconduct by procurement or
user personnel acting other than in good faith, neither of which is
alleged by the protester. See Miltope Corp.--Recon., B-188342, June
9, 1977, 77-1 CPD para. 417 at 2, aff'd, Miltope Corp.--Recon. (Second),
B-188342, July 1, 1977, 77-2 CPD para. 3 at 1.
The protest is denied.
Comptroller General
of the United States
1. An emergency egress lighting system, in simple terms, is a system
of lights which mark doors and window openings through which the crew
could exit the helicopter in an emergency situation.
2. The subfactors were ease of installation on aircraft,
maintainability of lighting system, light intensity and angle of view,
environmental impact, and life cycle cost.
3. The agency rated proposals with color/adjectival ratings of
blue/outstanding, green/acceptable, yellow/marginally satisfactory,
and red/unacceptable.
4. Stratus offered a "chemiluminescent" type light source. An
illumination is produced by a non-toxic biodegradable chemical
reaction. The control module contains proprietary chemicals which are
combined and then injected in the light tube. The primary drawback of
this type of light source is that it can only be used once and then
has to be replaced. The other offerors proposed light emitting diodes
(LED) which did not have to be replaced after being illuminated during
testing.
5. In its protest, Stratus contended that it understood from the
agency's debriefing and award notification letter that the award was
for an item that was going to be custom made; the protester argued
that this was inappropriate in a procurement governed by Part 12 of
the FAR for commerical items. Protest at 7-8. In its report, the
agency explained that, at the debriefing and award notification
letter, it may have misused the term "custom made" with reference to
the awardee's system; the agency advised that, while the awardee's
system contains developmental items, these are small in number and
minor in nature (brackets and mounting hardware), and the system thus
met the definition of a commercial item, since it was primarily
non-developmental and was an adaptation of a system commercially
available to the general public. Contracting Officer's Statement at
4. See FAR sec. 2.101. In its comments on the agency report, Stratus
conceded that this protest ground was based on the agency's earlier
information, now corrected, and Stratus provided no other basis for
challenging the awardee's item as a commercial item. Protester's
Comments at 8. We therefore view the issue as abandoned.