TITLE:  B. E. Meyers & Company, Inc., B-283796, December 14, 1999
BNUMBER:  B-283796
DATE:  December 14, 1999
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B. E. Meyers & Company, Inc., B-283796, December 14, 1999

Decision

Matter of: B. E. Meyers & Company, Inc.

File: B-283796

Date: December 14, 1999

D. William Toone, Esq., Miller, Nash, Wiener, Hager, & Carlsen, and Thomas
W. Winland, Esq., Finnegan, Henderson, Farabow, Garrett & Dunner, for the
protester.

D. Susan Spiegelman-Boyd, Esq., Department of the Navy, for the agency.

Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Exclusion of protester's proposal from the competitive range was not
improper where the agency reasonably concluded that there were significant
deficiencies in the protester's proposal which made it technically
unacceptable as submitted and that major revisions would have been required
to make it acceptable.

DECISION

B. E. Meyers & Company, Inc. (Meyers) protests the exclusion of its proposal
from the competitive range under request for proposals (RFP) No.
N00164-99-R-0122, issued by the Department of the Navy for the purchase of
two different types of weapons sights--the night vision crew-served weapon
sight (NVCSWS) and the submersible night vision individual weapon sight. [1]

We deny the protest.

Issued on July 13, 1999, the RFP called for the supply of up to 1,600
fixed-price NVCSWS units over a 5-year period. The units were to be
manufactured in accordance with the RFP's statement of work (SOW),
performance specifications, and drawings that were incorporated by
reference. The pertinent performance specification stated that each NVCSWS
would consist of an objective lens assembly, a battery housing, an image
intensifier tube, a biocular eyepiece, a mounting system, a daylight cover,
two batteries, a lens cleaning kit, a carrying bag, a shipping/storage case,
and a reticle. RFP, attach. 3, sect.sect. 3.1, 3.3.2. The RFP stated that the
contract would be awarded to the offeror whose proposal represented the best
value after evaluation of technical, past performance, and price factors.

The RFP directed offerors to submit technical and past performance proposals
for evaluation; offerors were allowed a total of 68 pages for the executive
summary and technical proposals combined. RFP, Federal Acquisition
Regulation (FAR) sect. 52.212-1 Addendum, at 16-19, and amend. 1, at 2. The RFP
required that "[e]ach technical proposal shall be specific, detailed, and
complete as to clearly and fully demonstrate that the prospective contractor
has a thorough knowledge and understanding of the requirements . . . ." RFP,
FAR sect. 52.212-1 Addendum, at 17. The RFP stated that "[t]he Offeror shall
provide detailed answers to demonstrate that their proposed units meet the
requirements of the Performance Specification and SOW." Id. The RFP also
specified that offers should reply to each RFP requirement and should
include references to commercially available technical literature, or
include sufficient technical detail, to substantiate the offeror's reply to
each requirement. Id. The RFP specifically required that "[e]ach response
shall describe the system(s) characteristics and performance with respect to
the requirements specified in each paragraph of the applicable Performance
Specification." Id.

Initial proposals for the NVCSWS were received from two offerors--Litton
Electro-Optical Systems (Litton) and Meyers. The entire Meyers technical
proposal consisted of three pages (one of which dealt exclusively with
warranties). Agency Report, Tab 5, Meyers Technical Proposal, at 3-5. The
proposal included a picture of the proposed biocular eyepiece but did not
include any technical literature, references to commercially available
technical literature, or detailed discussion of the technical specifications
of the offered components to demonstrate that the protester's proposed
system would meet the RFP's numerous requirements. Significantly, the Meyers
proposal stated that it was offering to replace the specified biocular
eyepiece with its own product, and specifically stated that the required
image intensifier tube and mounting systems were not included. Id. at 3-4.
Additionally, as the agency points out, Meyers did not propose to supply the
required battery housing design and eyeshield assembly. Agency Report at 6.

Based upon the lack of any technical data to support the components that
were proposed and the fact that Meyers was proposing to supply only part of
the required system, the agency's technical evaluators determined that the
proposal did not meet or address many of the RFP's minimum requirements and
that it had no strengths, but contained [deleted] major weaknesses and
[deleted] major deficiencies. Agency Report, Tab 7, Technical Evaluation,
at 31. In fact, the evaluators found that Meyers proposed to provide only
approximately 20 percent of the RFP's required major

system components. Agency Report at 6. As a result, the evaluators concluded
that the Meyers technical proposal was "unacceptable" and represented an
"unacceptably high technical risk." Agency Report, Tab 7, Technical
Evaluation, at 31.

The contracting officer nonetheless called Meyers for clarification of its
proposal; Meyers confirmed that it was offering to supply the agency with
some but not all of the required components of the NVCSWS system. Agency
Report, Tab 8, Meyers Clarifications Memorandum, at 1. Meyers also clarified
that it would assemble the entire system if the agency would purchase the
other components (i.e., those that Meyers was not offering to supply) from
another supplier and provide them to Meyers as government furnished
equipment. Agency Report at 6.

After obtaining this clarification, the contracting officer determined that
the Meyers proposal represented an unacceptably high risk and excluded the
proposal from the competitive range. Id. at 7; Agency Report, Tab 10,
Competitive Range Determination, at 3-4. The contracting officer noted that
the protester's lower proposed price could not properly be compared with
Litton's price because Meyers was offering only part of the complete system.
Agency Report, Tab 10, Competitive Range Determination, at 2-3. Meyers was
notified of its exclusion from the competitive range and filed this protest
shortly thereafter. The agency has informed our Office that it will not
proceed with award of the contract for the NVCSWS and related items pending
resolution of the protest. Agency Report at 7.

Basically, Meyers states that it designed a night vision device that is
"nearly identical" to the NVCSWS, that it is an expert in the field of
laser-illuminated night vision devices, and that it has a superior past
performance history and generally lower prices than those of an unnamed
"insider" company to which the agency allegedly was trying to direct award
of this contract. On this basis, Meyers contends that its proposal should
have been included in the competitive range. [2] Protest at 2-4.

In reviewing challenges to an agency's competitive range determination, we
will not independently reevaluate proposals; rather, we examine the
evaluation only to determine whether it was reasonable and consistent with
the RFP. United Housing Servs., Inc., B-281352.14, May 7, 1999, 99-1 CPD
para. 80 at 3. The technical evaluation of a proposal is based on information
submitted in it, and an offeror runs the risk of having its proposal
downgraded and rejected if the proposal submitted inadequately addresses the
RFP requirements. Id. Here, the record shows that the evaluation and
decision to exclude the Meyers proposal from the competitive range were
reasonable and consistent with the RFP.

We have reviewed the protester's proposal in light of the RFP requirements,
and we conclude that the contracting officer reasonably determined that the
protester's proposal was unacceptable as submitted and that Meyers would
have had to submit "what would amount to an entirely new proposal . . . to
correct the technical deficiencies." Agency Report, Tab 10, Competitive
Range Determination, at 2-3. Indeed, the protester does not deny that it did
not propose an entire system, as required by the RFP. [3] Accordingly, we
have no basis to find improper the contracting officer's determination to
eliminate the Meyers proposal from the competitive range.

The protest is denied.

Comptroller General
of the United States.

Notes

1. The protest concerns only line items for the supply of the NVCSWS and
related warranties and data. Therefore, we will discuss only procurement
actions related to those line items in this decision.

2. Initially, the protester alleged that its rejection was part of an agency
scheme to route awards for this type of item to an "insider" firm that
currently is supplying a similar item to the Navy. Protest at 2. The Navy
reported that the unnamed supplier to which Meyers referred was Insight
Technologies. Since Insight Technologies did not submit a proposal in this
procurement, the Navy argued that the allegation of a

scheme to direct award to it was without any factual foundation. Agency
Report at 8, 13. Meyers did not reply to the agency's response. We therefore
consider the allegation abandoned. Trijicon, Inc., B-244546, Oct. 25, 1991,
91-2 CPD para. 375 at 4 n.3.

3. To the extent that Meyers argues that the RFP should have allowed offers
of a part of the system with the government furnishing the other components
necessary for assembly by the winning contractor, or that the RFP should
have allowed Meyers to substitute a different eyepiece for the one required
by the RFP, the protest is untimely. Protests alleging solicitation
improprieties must be filed before the closing date for receipt of initial
proposals. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (1999).