TITLE: Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334; B-282334.2; B-282334.3, June 30, 1999
BNUMBER: B-282334; B-282334.2; B-282334.3
DATE: June 30, 1999
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Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334;
B-282334.2; B-282334.3, June 30, 1999
Matter of: Canadian Commercial Corporation/ Liftking Industries, Inc.
File: B-282334; B-282334.2; B-282334.3
Date: June 30, 1999
Richard L. Moorhouse, Esq., James P. Gallatin, Jr., Esq., and Andrew J.
Hungerman IV, Esq., Reed Smith Shaw & McClay, for the protester.
Gary E. Cross, Esq., Dunaway & Cross, for Kalmar Last Maskin Verkstad, an
intervenor.
Jeffrey I. Kessler, Esq., and Susan M. Lewandowski, Esq., Department of the
Army, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Solicitation language that stated that the agency intended to make up to
two awards allowed the agency the discretion to make a single award; it did
not state a requirement for multiple awards.
2 The agency reasonably determined that a single award was in the best
interest of the government where the agency reasonably evaluated the
awardee's offer as substantially superior to the protester's offer such that
award to the awardee alone was in the government's best interests.
3. General Accounting Office will not review an agency's determination to
waive Buy American Act preference requirements as being in the public
interest; late approval of the waiver does not provide a basis to object to
the agency's source selection decision which presumed the waiver of the Buy
American Act requirements would be obtained.
DECISION
Canadian Commercial Corporation, on behalf of Liftking Industries, Inc.,
protests the award of a contract to Kalmar Last Maskin Verkstad under
request for proposals (RFP) No. DAAE07-98-R-S011, issued by the U. S. Army
Tank-Automotive and Armaments Command (TACOM), for two prototype rough
terrain container handlers (RTCH).
We deny the protest.
An RTCH is a vehicle that lifts, moves, and stacks 20-foot and 40-foot long
containers up to a stated load weight. Agency Report (AR), Tab 7,
Operational Requirements Document (ORD), at 1, and Tab 11, Source Selection
Plan (SSP), at 5. The Army's current RTCHs were fielded between 1979 and
1984, and no longer fully meet the agency's needs with regard to efficiency,
economy, and lift capability. In addition, the current RTCHs require labor-
and equipment-intensive disassembly for transportation. AR, Tab 7, ORD, at
2.
The Army developed a two-phased acquisition strategy to obtain the new
RTCHs. AR, Tab 11, SSP, at 5-6, and Tab 17, RFP, at 20. In phase 1, up to
two demonstration contracts were to be let, after full and open competition,
for prototype RTCHs for testing. The Army hoped to award one contract for a
mast-type RTCH (which is the type of RTCH currently used by the agency) and
another contract for an alternative technology type RTCH. Award of a
production contract for the RTCHs would be made in phase 2. Offerors were
informed that the agency might acquire between 394 and 500 RTCHs during
phase 2, depending upon available funding. AR, Tab 17, RFP,
at 20. The competition for the production contract would be limited to the
contractors who received prototype demonstration contracts under phase 1.
[1] Id.
The Army conducted a number of market surveys and obtained industry comments
on a draft purchase description (PD) and draft RFP. AR, Tab 1, Contracting
Officer's Statement, at 1-2. The PD and RFP were drafted to allow a variety
of design types to compete for award. Id. From its market surveys, the
agency expected proposals offering RTCHs using a fixed mast, which is an
older, proven technology, and RTCHs using an extendable overhead boom (also
called reach stackers), which is based upon newer technology. [2] Id. at 2.
The Army implemented phase 1 of its acquisition plan by issuing the RFP on
August 24, 1998. The RFP provided for the award of up to two fixed-price
contracts for the prototype RTCHs and for training and support services.
Specifically, offerors were informed as follows:
The government intends to award up to two contracts for up to two
technologies, to up to two responsible offerors whose proposals, in the
Source Selection Authority's [SSA] opinion, represent the best value to the
government, based upon the criteria set forth in this Section M. The
government intends to award one contract for the best value mast type (as
defined in ASME B56.6) container handler and another contract for the best
value alternative technology container handler. However, we reserve the
right to make awards based on the two best proposals.
AR, Tab 17, RFP, sect. M.2, at 93. Offerors were also informed that the agency
had approximately $3 million available to fund two prototype contracts. Id.
at 19. Delivery of the prototype RTCHs was required within 210 days of
contract award. Id. sect. F.5 at 45.
The RFP's PD stated the minimum essential performance and design
capabilities that the RTCH's must meet. AR, Tab 17, RFP, at 100-56. Among
other things, the RTCH must be capable of lifting loads of up to a gross
weight of 53,000 pounds, while operating on a variety of surfaces, including
sandy, snowy or muddy surfaces. AR, Tab 17, RFP, at 100, 106. Also,
requirements were provided for the quick disconnection of hydraulic,
electrical, heater, fuel, oil, air conditioning, and air lines to allow for
transport disassembly. Id. at 114, 115. Offerors were informed that
proposals must meet all required performance levels.
The following evaluation criteria and subcriteria were identified in RFP sect.
M.3:
1. TECHNICAL
a. Transportability
b. Mobility and Related Items
c. Container Handling
d. Schedule Risk and Test Support
2. LOGISTICS
a. Technical Manuals
b. Logistics Support
3. PRODUCTION ESTIMATE [3]
4. PAST PERFORMANCE/SMALL BUSINESS
a. Performance History
b. Small Business Participation
5. PRICE
The technical criterion was stated to be more important than any other
single criterion and to be almost as important as all other criteria
combined. The second most important criterion, logistics, was stated to be
significantly more important than the production estimate criterion, which
was stated to be more important than the past performance/small business
criterion, which in turn was more important than price. AR, Tab 17, RFP, sect.
M.3.b.1, at 93.
The RFP also identified, under the first three subcriteria of the technical
criterion, desired characteristics that offerors could propose to satisfy.
AR, Tab 17, RFP, sect. M.4.b.1, at 94-95. For example, under the
transportability subcriterion the RFP required that RTCHs be capable of
disassembly for air transportation within 14 hours but expressed a desire
for disassembly within 4 hours. [4] Id. at 95 Offerors were informed that
the agency would assess the extent to which the offeror proposed to meet the
desired characteristic, the relative importance of the desired
characteristic, and the risk of the offeror not being able to meet what the
offeror proposed. Id. at 94.
The RFP incorporated by reference Defense Federal Acquisition Regulation
Supplement (DFARS) sect. 252.225-7001, which implements the Buy American Act,
41 U.S.C. sect. 10a-10d (1994), and provides for the addition of an evaluation
differential to offerors proposing to furnish foreign end products when they
are in competition with offers of domestic end products. AR, Tab 17, RFP, sect.
H, at 47. The differential to be applied to a nonqualifying country end
product is 50 percent of the offered price inclusive of duty. DFARS
sect. 252.225-7001(d).
The RFP provided detailed proposal preparation instructions for each
evaluation criterion and subcriterion. AR, Tab 17, RFP, sect. L, at 76-91.
Offerors were informed that certain portions of their proposals would only
be presented orally. For example, offerors were directed to provide a
written response to the first three subcriteria within the technical
criterion, but to address the schedule risk and test support subcriterion
only during an oral presentation. Id. sect. L.20, at 82, 85. Specific
instructions for the preparation of oral presentation were also provided.
Id. sect. L.25, at 91-92.
Five proposals, including those of Liftking (a Canadian firm) and Kalmar (a
Swedish firm), were received in response to the RFP. [5] Oral presentations
were made, discussions conducted, and final proposal revisions (FPR)
received. Kalmar's and Liftking's FPRs were evaluated as follows:
Criteria Kalmar Liftking
Technical [6] Good/Low Risk Adequate/Moderate
Risk
Logistics Excellent/Very Low Adequate/Moderate
Risk Risk
Production Estimate [DELETED] [DELETED]
Reasonable/Realistic Reasonable/Realistic
Past Good/Low Risk Marginal/High Risk
Performance/Small
Business
Price [DELETED] [DELETED]
AR, Tab 45, SSA Briefing, at 6, 40.
Kalmar proposed to modify its commercial boom-type (reach stacker) container
handler to satisfy the PD requirements. AR, Tab 37, Source Selection
Evaluation Board (SSEB) Technical Criterion Worksheet for Kalmar, at 1. The
good/low risk rating Kalmar's proposal received under technical, the most
important criterion, reflected the SSEB's assessment that Kalmar had offered
significant technical advantages and improvements that would translate into
improved flexibility for both military planners and operators. Id. at 5.
Among other things, Kalmar had proposed a design that would not require
disassembly for transportability; this was viewed as a major advantage that
allowed Kalmar to propose to exceed to the maximum extent all desired
characteristics for transportability. Id. at 4. The evaluators noted that
the "single major drawback" associated with Kalmar's proposed increased
capabilities is that these capabilities had never before been built into a
single vehicle; the evaluators concluded, however, that although unknown
problems may exist, this disadvantage was outweighed by the number and
magnitude of technological advantages offered by Kalmar's product. Id. at 5.
Kalmar's excellent/very low risk rating under logistics, the second most
important criterion, reflected the SSEB's assessment that Kalmar had
proposed an excellent approach to satisfying the technical manual
requirements and has an excellent global support network that should provide
good parts support, including to users in isolated areas. AR, Tab 38, SSEB
Logistics Criterion Worksheet for Kalmar, at 3. The evaluators positively
noted Kalmar's current use of electronic data interchange to process parts
orders and detailed plan for direct vendor delivery. Id.
Liftking proposed to modify its existing mast-type RTCH. [7] AR, Tab 29,
SSEB Technical Criterion Worksheet for Liftking, at 1. Liftking's
adequate/moderate risk rating under the technical criterion reflected the
SSEB's concern that, although Liftking had proposed a sound approach that
was capable of meeting the PD requirements, its proposed design presented a
number of disadvantages, including the requirement for disassembly to allow
for transportation. Id. at 1-2; AR, Tab 45, SSA Briefing Charts, at 9. In
addition, the evaluators were concerned with Liftking's understanding and
compliance with military standard tiedown requirements, which affected the
transportability of the offeror's proposed RTCH. [8] The evaluators also
noted a number of disadvantages with regard to container handling in
Liftking's design. Specifically, the evaluators noted that the firm had not
yet finalized the design of their hydraulic system and tophandler, but
believed that Liftking's approach was feasible and practicable. [9] In
addition, the evaluators were concerned that emergency manual lowering of a
load must be controlled from outside the operator cab and would require at
least two people. AR, Tab 29, SSEB Technical Criterion Worksheet for
Liftking, at 22.
Liftking's FPR was evaluated as adequate/moderate risk under logistics, the
second most important criterion. AR, Tab 45, SSA Briefing Charts, at 6. The
SSEB noted that the firm demonstrated a general understanding of the
government's requirements for the written technical manual and appeared
capable of delivering manuals by the vehicle hand-off date of June 30, 2001.
AR, Tab 30, SSEB Logistics Criterion Worksheet for Liftking, at 3.
Nevertheless, the evaluators were concerned that Liftking intended to
perform the work inhouse, rather than using an experienced subcontractor,
and intended to hire college students to perform parts of the manual
development. Id. at 7-8. Also, the SSEB was concerned that Liftking's
intended schedule did not allot a realistic time for technical manual
development. Id. With regard to logistics support, the SSEB found that
Liftking could provide global support through a dealer network but that the
firm was not electronically connected to its vendors. Id. at 12. Although
Liftking stated that it planned to be electronically connected by 2001, it
did not offer a specific plan to do so. This, the evaluators concluded,
would negatively affect the government's plan for direct vendor delivery,
which would be provided through a transparent system that used electronic
data interchange to route orders from the user to the supplier shipment. Id.
at 13.
The SSEB's evaluation results were presented to the SSA, who adopted them as
his own. AR, Tab 46, Source Selection Decision, at 2-4. The SSA concluded
that Kalmar's proposal offered the best value to the government. Id. at 4.
Specifically, the SSA noted that Kalmar's proposal was the highest rated
under the two most important evaluation criteria-technical and logistics-as
well as the past performance criterion, which the SSA stated "tells me the
Government has little risk of not getting what Kalmar is proposing." Id.
Among a number of strengths noted by the SSA, the SSA found particularly
significant the fact that Kalmar's proposed design did not require
disassembly for transportation, as well as the container handling capability
of Kalmar's proposed RTCH, which was the only one that could stack nine and
one-half foot containers three high, which the SSA noted provides greater
flexibility in marshalling areas and using available ground space. Id. at
4-5. The SSA also recognized that, although Kalmar's production estimate was
higher than that of the other offerors, Kalmar's unit price estimate was
reasonable, well supported, and within the government target: "I believe the
Government would be more than willing to pay [Kalmar's] estimated price for
a vehicle that offers so many advantages." Id.
at 5.
Regarding Liftking's proposal, the SSA concluded that Liftking had a
credible proposal, offering some advantages. However, the SSA noted a number
of disadvantages in Liftking's offer:
[Liftking has] not finalized their tophandler design raising some question
about [Liftking's] ability to meet the container handler requirements and
prototype delivery schedule. Most significantly, Liftking does not
demonstrate a good understanding of the manuals requirement and there is
concern over their ability to support the vehicle once fielded. Over 90% of
the parts of their vehicle are supplied by vendors to whom they are not
electronically linked nor do they have a well defined plan to do so.
Additionally, [Liftking's] performance history shows a record of late
delivery of both prototypes and manuals. Liftking offers no advantages over
Kalmar in the Technical area and their apparent lack of understanding of the
manual process and concerns about their ability to support the vehicle, as
well as their performance history, lead me to conclude that award to
Liftking is not in the best interests of the Government.
Id. at 5.
The SSA determined that despite the agency's original intent to award two
contracts for the phase 1 testing of the RTCH, it was not in the
government's best interest "to spend the money to take either of the other
two offerors [other than Kalmar] through Phase 1." Id. Specifically, the SSA
stated:
Considering Kalmar's across the board strengths and the relevance of these
strengths to the Phase II selection criteria, neither other offer has a
reasonable chance of winning the Phase II production contract. It would not
be responsible for TACOM to cause either other offeror to expend resources
necessary for the completion of Phase I and the preparation of a Phase II
proposal, nor would it be a prudent use of Government funds.
Id. at 6. Accordingly, only the offer of Kalmar was selected for award.
Liftking was notified of award, and this protest followed.
Liftking complains that selecting only Kalmar's proposal for award was
inconsistent with the stated intent of the RFP, which provided for multiple
awards. Protest at 5. Liftking argues that making only a single award
represented a change in the agency's requirements for which offerors were
not given notice or an opportunity to respond. Liftking also complains that
the agency should have informed offerors that only the boom-type technology
would meet its needs. Id. at 5-6.
In response, the agency notes that the RFP merely permitted, but did not
mandate, the award of multiple contracts. AR, Tab 2, Legal Memorandum, at
11. The agency admits that its expectation had been that multiple awards
would be made under the RFP to offers for a mast-type and boom-type RTCHs.
AR, Tab 1, Contracting Officer's Statement, at 19. Nevertheless, the agency
states that Kalmar's proposal for a boom-type RTCH was so superior to
Liftking's and the other offeror's proposals that neither Liftking nor the
other offeror had a reasonable chance of winning a phase 2 award. Id.
We agree with the agency that the RFP did not require multiple awards.
Although it is certainly true that the solicitation expressed the agency's
intention to award up to two prototype contracts under the RFP, this
expression of intent cannot reasonably be read as stating a legal
requirement for multiple awards. Rather, the agency's expressions of intent
merely signified the agency's expectations and did not themselves create a
legal obligation to award two contracts. See McNeil Techs., Inc.,
B-278904.2, Apr. 2, 1998, 98-1 CPD para. 96 at 5 (solicitation language that
agency contemplates or anticipates making award to a particular type of firm
does not state a legal obligation but merely states the agency's
expectation). Given the discretion retained by the agency to make up to two
awards, we conclude that offerors could not have been reasonably misled, as
Liftking argues, into believing that two awards would be made under all
circumstances.
We also find that the agency had not pre-determined that it would make award
to a boom-type RTCH, as Liftking suggests. Rather, the record supports the
agency's statement that in finalizing its acquisition strategy the agency
was unsure whether any technology other than the mast-type RTCH could meet
its needs. For example, a June 15, 1998 in-process review briefing on the
RTCH program shows that, prior to the issuance of the RFP, the agency made
significant efforts to determine the technology available to meet the
agency's needs. AR, Tab 13, Special In-Process Review for the RTCH Program,
at 25; see also Tabs 4 (market survey), 5 (Commerce Business Daily notice),
6 (market survey), 8 (Commerce Business Daily notice), and 9 (market
survey). As reflected in this pre-solicitation briefing, the agency had
determined that mast-type technology appeared to be lower risk and lower
cost than other alternative technology, such as that offered by the
boom-type RTCH. AR, Tab 13, Special In-Process Review for the RTCH Program,
at 31. Similarly, in another pre-solicitation document, the agency noted
that it considered mast-type RTCHs to be low risk because they use proven
technology while reach stackers were considered moderately risky because
"there are no existing rough terrain reach stackers" and that the potential
for cost growth for reach stackers was high. AR, Tab 14, June 17, 1998
E-Mail from the Assistant Product Manager to the Army Deputy for Systems
Acquisition. There is simply nothing in the record that contradicts the
agency's statement that it was surprised by the technical excellence and low
production estimate (anticipated unit pricing) of Kalmar's proposal.
Liftking also complains that awarding only one prototype contract was
unreasonable under the circumstances presented here. In this regard,
Liftking challenges the agency's evaluation of its and Kalmar's proposal.
Liftking also contends that, even accepting the agency's evaluation results,
by making only one award:
the Army is subjecting itself to the heightened risk--antithetical to the
purpose of the procurement in the first place--that will have only a
boom-type RTCH prototype for testing, a vehicle which uses a technology
never before adapted for ruggedized, militarized use. The Kalmar unit may
not successfully pass the testing requirements, and the Army may then be
compelled to reject the Kalmar RTCH or to relax previously-mandatory
specification requirements for the sole benefit of Kalmar and to the
prejudice of other offerors.
Protester's Final Comments, June 10, 1999, at 2.
In reviewing protests of allegedly improper evaluations and source selection
decisions, our Office examines the record to determine whether the agency's
judgment was reasonable and in accord with the stated evaluation criteria.
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. A
protester's mere disagreement with an agency's judgment does not render it
unreasonable. Brunswick Defense, B-255764, Mar. 30, 1994, 94-1 CPD para. 225 at
9.
Here, we find from our review of the record that the agency's evaluation of
the firms' proposals was reasonable. The agency's evaluation is supported by
contemporaneous documentation that details the agency's judgments under each
evaluation criterion and subcriterion. AR, Tabs 29-44, SSEB Evaluation
Records, and Tab 45, SSA Briefing Charts. In addition, the contracting
officer has provided a detailed post-protest explanation, which is
consistent with the contemporaneous evaluation record. As explained below,
Liftking references only selected portions of the evaluation record in an
effort to undermine the agency's evaluation conclusions. While Liftking's
arguments demonstrate its disagreement with the agency's judgment, it does
not show that the evaluation was unreasonable.
For example, under the transportability subcriterion, which was the most
important subcriterion under technical, the most important criterion,
Liftking complains that Kalmar's proposal was assessed as good/low risk,
while Liftking's proposal was assessed as adequate/moderate risk, even
though both proposals were noted to have proposed too many tiedowns for
transportation of the RTCHs. Protester's Comments at 17-18. Liftking
contends that the evaluators' concerns with Liftking's plan for tiedowns did
not justify an adequate/moderate risk rating under this factor. Protest
at 8. Liftking also questions Kalmar's higher rating under this criterion,
where the evaluators noted that Kalmar proposed the use of spreader bars to
lift the vehicle and that Kalmar's RTCH would have an extensive overhang
when loaded on a military trailer. Protester's Comments at 19.
It is true that the agency cited as a proposal disadvantage both Kalmar's
and Liftking's proposed number of tiedowns for transportation of their RTCH.
AR, Tab 45, SSA Briefing Charts, at 9. It is also true that the SSEB cited
as a moderate design risk Kalmar's proposed use of spreader bars and noted
that in "a few states, in certain circumstances" Kalmar may need to remove
its top handler due to excessive overhang. AR, Tab 37, SSEB Technical
Criterion Worksheet for Kalmar, at 8-9. Nevertheless, Liftking's protest
arguments ignore the remainder of the evaluation record that explains the
agency's ultimate evaluation judgment with respect to the transportability
subcriterion. Regarding the firms' tiedown provisions, the agency found that
Liftking not only proposed too many tiedowns for highway, rail, and air
transportation, but, more importantly, had failed to demonstrate a clear
understanding of the current military standard requirements for tiedowns.
AR, Tab 29, SSEB Technical Criterion Worksheet for Liftking, at 10-12.
Kalmar, on the other hand, was found to propose too many tiedowns in only
the rail transport mode, but had proposed the appropriate number of tiedowns
for highway, marine and air transport. AR, Tab 37, at 8. Also, significantly
and in contrast to Liftking, Kalmar demonstrated its knowledge and
understanding of the current military standard governing tiedowns and
transportation. Id.
With respect to Kalmar's proposed use of spread bars and Liftking's
allegations regarding the overhang of Kalmar's RTCH when loaded on a
military trailer, [10] these disadvantages were specifically recognized by
the SSEB in its evaluation. AR, Tab 37, SSEB Technical Criterion Worksheet
for Kalmar, at 10. The evaluators weighed these disadvantages and Kalmar's
proposal of too many tiedown points for rail transport against the
significant advantages offered by Kalmar's design, which required no
disassembly for transportation. The evaluators concluded that taken together
the significant advantages outweighed the disadvantages evaluated in
Kalmar's proposal. We find no basis in this record to question the agency's
evaluation judgment.
Similarly, with respect to the container handling subcriterion of the
technical criterion, Liftking objects to its adequate/moderate risk rating
as opposed to Kalmar's excellent/low risk rating as "an unfair apple/oranges
comparison because a mast-type RTCH does not operate the same way as a
boom-type RTCH, but TACOM never stated in the RFP or elsewhere that it
preferred boom-type technology." Protester's Comments at 20. In addition to
ignoring the evaluation record, this argument reflects a fundamental
misunderstanding of the solicitation requirements and evaluation scheme. The
RFP allowed offerors to propose any technology type of RTCH, which was to be
evaluated against various design and performance requirements. Here,
Liftking's proposed RCTH was downgraded under the container handling
subcriterion because its tophandler and hydraulic system design had not yet
been finalized and were not adequately addressed in Liftking's proposal. AR,
Tab 29, SSEB Technical Criterion Worksheet for Liftking, at 22, 23. Liftking
does not show this judgment to be unreasonable. [11] Kalmar's proposal was
found under this subcriterion to reflect an excellent approach that would
clearly satisfy all requirements and which offered numerous substantive
advantages and no disadvantages. AR, Tab 37, SSEB Technical Criterion
Worksheet for Kalmar, at 21. Liftking does not dispute these findings or
conclusions regarding Kalmar's proposal under the container handling
subcriterion.
As another example, Liftking protests its adequate/moderate risk rating
under logistics, the second most important criterion, complaining that
agency criticisms of its plan to produce the written technical manual
in-house and of its failure to have an electronic data interchange parts
supply system were unfair.
Regarding its plan to produce the written technical manual in-house,
Liftking argues that upon receiving award Liftking could have changed its
in-house approach and subcontracted the written technical manual to an
experienced vendor, as Liftking proposed to do with the required
electronic-format manuals. While it is certainly true that Liftking could
have proposed a different approach to producing the written technical
manual, the agency was required to evaluate what Liftking actually offered.
Here, the agency assessed Liftking's proposed approach to preparing the
technical manual as a moderate risk because it found that Liftking
underestimated the amount of time required for development of the manual and
proposed to produce the work in-house without sufficient personnel. AR, Tab
30, SSEB Logistics Criterion Worksheet for Liftking, at 7-8. While Liftking
disagrees with the agency's judgment, it has not shown it to be
unreasonable.
Regarding its failure to have an electronic data interchange parts supply
system, Liftking contends that this should not have been assessed as a
disadvantage because Liftking offered to provide an electronic data
interchange system in 2001 and because the phase 1 award was a development
effort for which the electronic data interchange system would not be
necessary. Protester's Comments at 21. This argument ignores, however, the
evaluators' concerns that Liftking offered no specific plan for implementing
an electronic data interchange system. AR, Tab 30, SSEB's Logistics
Criterion Worksheet for Liftking, at 12-14.
Liftking also argues that Kalmar's proposal did not satisfy the mandatory
RFP requirement for roll-over protective structure (ROPS) and falling
objects protective structure (FOPS). Protester's Comments at 9. This protest
allegation is based upon the fact that Liftking's mast-type design employed
a steel structure around the operator's cab to satisfy this requirement,
while Kalmar's boom-type design did not. The protester also cites a portion
of the evaluation record where the SSEB commented that in Kalmar's design
the cab would be crushed by the boom in the event of a catastrophic failure
of both boom hoist cylinders or attachment points.
A complete reading of the record does not support the protester's arguments.
The evaluators found that the boom-over-cab design offered by Kalmar
satisfied the ROPS/FOPS requirements without the need for a steel structure,
which Liftking's different design required. AR, Tab 37, SSEB Technical
Criterion Worksheet, at 16. It is true that the evaluators stated that in
the boom-over-cab design the cab could be crushed in the "remote event of
catastrophic simultaneous failures of both boom hoist cylinders or
attachment points." Id. The evaluators noted that Kalmar recognized this
potential problem and had designed affected areas to mitigate any possible
problem. Id. Liftking does not assert that the evaluators' judgment in this
regard was unreasonable.
In sum, we find that the evaluation record supports the reasonableness of
the SSEB evaluation conclusions regarding Kalmar's and Liftking's proposals.
[12]
We also do not agree with Liftking that the SSA's decision to award only one
phase 1 contract to Kalmar was unreasonable or too risky. As noted above,
the SSA prepared a detailed source selection decision that explained the
basis of his decision to award one contract to Kalmar. AR, Tab 46, Source
Selection Decision. This document demonstrates that the SSA was well aware
of the evaluated advantages and disadvantages in the firms' offers. It also
shows that the SSA knew that selecting only Kalmar's offer for award
represented a change in the agency's acquisition strategy for the RCTH
program. Id. at 4. The SSA explained in his decision how he determined that
Kalmar's proposal was not only the "best overall" but was the only one that
had a reasonable chance of winning the phase 2 production contract when the
relevance of Kalmar's "across the board strengths" were considered. Id. at
4-6. The SSA also specifically noted why he believed that award to Kalmar
alone would not be too risky, given Kalmar's high evaluation ratings under
the technical, logistics, and past performance criteria. Id. at 4. While
Liftking disagrees with the SSA's judgment, it has not shown it to be
unreasonable or erroneous in any regard.
Liftking also complains that at the time of award the agency had neither
applied the Buy American Act evaluation preference, which required the
application of the 50-percent price evaluation factor to Kalmar's offer, nor
waived the Buy American Act requirements. Liftking also complains that
waiver of the Buy American Act requirements is not appropriate here.
Acquisitions for products from Sweden may, on a purchase-by-purchase basis,
be exempted from application of the Buy American Act as inconsistent with
the public interest. DFARS sect. 225-872-1(b). It is true that the agency waived
the application of the Act to Kalmar's offer only after Liftking filed its
protest. The Assistant Secretary of the Army (Acquisition, Logistics and
Technology) determined that, consistent with the memorandum of understanding
between the United States and Sweden to remove barriers to procurement for
defense equipment produced in each other's countries, applying the
restrictions of the Buy American Act to Kalmar's proposal in this
procurement was inconsistent with the public interest. AR, Tab 61.
Liftking states that it does not question "the Assistant Secretary's
authority and discretion whether to issue a waiver here, but rather
complains that the waiver itself is legally insufficient." Protester's Final
Comments at 4. Liftking's arguments are based upon its own reading of the
memorandum of understanding between the United States and Sweden and its
allegations of evaluation errors.
The decision to waive the Buy American Act provisions in a particular
procurement "involves balancing competing Buy American and foreign policies
to determine what is in the public interest," which we will not review.
SeaBeam Instruments, Inc., B-247853.2, July 20, 1992, 92-2 CPD para. 30 at 5.
Although we agree with Liftking that the agency should have processed the
Buy American Act waiver prior to award of the contract, we do not find that
the late waiver of the Act's requirements provides us with a basis to
disturb the agency's procurement here. The fact remains that the agency's
evaluation and selection of Kalmar's offer presumed the waiver of the Buy
American Act evaluation preference and that ultimately the Assistant
Secretary of the Army determined that waiver was appropriate.
Finally, Liftking's complains that making a single award to Kalmar would
result in an unjustified sole-source award to Kalmar in phase 2. Protests
that merely anticipate improper agency action are speculative and premature
and will not be considered by our Office. Safety-Kleen Corp., B-274176,
B-274176.2, Nov. 25, 1996, 96-2 CPD para. 200 at 6. Here, the RFP does not
provide for the award of a production contract; that will be done under a
separate solicitation that has yet to be issued. In this regard, the agency
recognizes that its future procurement for production RTCH would require new
administrative judgments and states that in the event it determined to make
a sole-source award of the production contract, and prior to making such an
award,
the agency would publish a new synopsis and prepare a new justification for
other than full and open competition. Agency Response to Protester's Final
Comments, June 7, 1999, at 5.
The protest is denied.
Comptroller General
of the United States
Notes
1. A justification for other than full and open competition was prepared for
phase 2, limiting the competition to the contractors that received awards
under phase 1. AR, Tab 54.
2. Manufacturers of other technology types also expressed interest; however,
proposals were received only from manufacturers offering either the
mast-type or boom-type (reach stacker) RTCH. AR, Tab 1, Contracting
Officer's Statement, at 2.
3. Under the production estimate subcriterion, the agency assessed the
offeror's proposed estimate for production vehicles to determine whether the
offeror would be able to offer a price for the production vehicle in phase 2
that was affordable and reasonable. AR, Tab 17, RFP, sect. M.6, at 96. Offerors
were informed that the government's target average price for production
units was $500,000 per unit. AR, Tab 17, RFP, Executive Summary, at 19.
4. The RFP similarly provided required and desired disassembly time
requirements for highway, rail, and sea transportation. AR, Tab 17, RFP, sect.
M.4.b.1, at 94-95.
5. Ultimately, only three proposals were evaluated for award; of the other
two proposals initially received, one was rejected as incomplete and the
other was withdrawn.
6. Both Kalmar's and Liftking's offers were assessed as good/low risk under
the technical criterion for their respective offers to meet desired
characteristics. AR, Tab 45, SSA Briefing, at 6. Under the transportability
subcriterion, Kalmar was assessed as excellent/very low risk for its offer
to exceed all desired transportability characteristics, while Liftking was
assessed as good/low risk for offering to meet most desired characteristics.
AR, Tab 37, SSEB Technical Criterion Worksheet for Kalmar, at 2 and Tab 29,
SSEB Technical Criterion Worksheet for Liftking, at 12-13.
7. The other offeror also offered a mast-type RCTH.
8. Tiedowns are the locations on the RTCH where restraints are attached for
transporting RTCHs by railcar, trailer, aircraft, or watercraft. The current
military standard provides for four tiedown locations. The agency states
that there are limited tiedown devices on ships and railcars, and therefore
military equipment must be capable of being adequately restrained with only
four tiedown provisions, and military personnel are trained to plan for and
to use only four tiedown provisions. Supplemental Contracting Officer's
Statement at 27.
9. The tophandler is the adjustable device that attaches to the mast or boom
to pick up containers.
10. The agency states that whatever disadvantage is associated with Kalmar's
proposal with respect to overhang when loaded on a military trailer (and the
evaluation record indicates that this would be a problem only in a "few
states, in certain circumstances") was clearly outweighed by the fact that
Kalmar's RTCH could be loaded on a single trailer. AR, Tab 37, SSEB
Technical Criterion Worksheet for Kalmar, at 9; Supplemental Contracting
Officer's Statement at 28.
11. Liftking originally asserted that the agency's judgment in this regard
was unreasonable because this proposal was for the award of a prototype
contract and that Liftking would finalize its design after award. Protest at
8. The agency rebutted this argument in its agency report, AR, Tab 1,
Contracting Officer's Statement, at 7, and Liftking failed to reply to that
rebuttal in its comments.
12. Liftking also complains that the agency employed an undisclosed minimum
scoring scheme to determine that Liftking should not receive award under the
RFP. Supplemental Protest, May 28, 1999, at 2-3. There is absolutely no
evidence in the record supporting this allegation. As explained in the
agency's evaluation record and source selection decision, Kalmar received
award based upon the agency's conclusion that it had submitted a far
superior proposal and not based upon an evaluation scheme that required
offers to satisfy an established minimum score.