TITLE: Essex Electro Engineers, Inc., B-284149; B-284149.2, February 28, 2000
BNUMBER: B-284149; B-284149.2
DATE: February 28, 2000
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Essex Electro Engineers, Inc., B-284149; B-284149.2, February 28, 2000
Decision
Matter of: Essex Electro Engineers, Inc.
File: B-284149; B-284149.2
Date: February 28, 2000
Charles E. Raley, Esq., for the protester.
Jeffrey I. Kessler, Esq., and Robert E. Dudley, Jr., Esq., Department of the
Army, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's proposal was reasonably evaluated by the contracting agency as
technically unacceptable and excluded from the competitive range where the
proposal contained numerous deficiencies and disadvantages.
DECISION
Essex Electro Engineers, Inc. protests the exclusion of its proposal from
the competitive range under request for proposals (RFP) No.
DAAB07-99-R-B404, issued by the Communications and Electronics Command,
Department of the Army, for 100-kilowatt (kW) and 200-kW tactical quiet
generators (TQG). Essex contends that the evaluation of its proposal and its
exclusion from the competitive range were improper.
We deny the protest.
The RFP was issued to acquire modernized standard mobile 100-kW and 200-kW
electric power generators for use by the Army, Navy, Air Force and Marine
Corps. Contracting Officer's Statement, Dec. 12, 1999, at 1; RFP attach. 1,
Statement of Work (SOW), at 1. The 100-kW and 200-kW TQGs will replace the
current 100-kW and 200-kW generators and will have the following desirable
characteristics relative
to current generators: less weight, diesel/JP-8 fueled, reduced aural
signature, quality power output, improved reliability and maintainability,
and decreased procurement and operational/maintenance costs. RFP attach. 1,
SOW, at 1.
The RFP executive summary explains that the procurement is being conducted
in three phases. Phase I of the procurement is an engineering and
manufacturing development (EMD) effort, during which the successful
contractor(s) will fabricate prototype generator sets. [1] During phase II
of the effort, pre-production TQGs will be delivered by the successful
contractor, based upon the contractor's phase I prototypes, with the TQGs
being subjected to pre-production qualification testing conducted by the
government, with the assistance of the contractor, to verify the TQGs'
conformance to the relevant requirements and to evaluate the units'
performance characteristics. After the successful completion of the Phase II
effort, the agency may exercise the option for Phase III, during which the
contractor will manufacture and deliver the TQGs.
The RFP contemplates the award of indefinite-delivery, indefinite-quantity,
cost-plus-fixed-fee contract or contracts for phases I and II, and a
fixed-price with economic price adjustment contract for phase III of the
procurement. Award is to be made to the offeror(s) submitting the proposal
determined to represent the best value to the agency based upon the
following evaluation factors and subfactors:
1. Technical
(a) Technical Design and Performance
(b) Specific Design Characteristics
(c) Technical Data
(d) Capabilities, Plans, Personnel and Facilities
1. Logistics
2. (a) Operation and Support Analysis
(b) Supportability Planning
3. Performance Risk
4. Cost/Price
5. Small Business and Small Disadvantaged Business Utilization Plan
RFP attach. 5, at 2. The technical evaluation factor is slightly more
important than the logistics factor and the logistics factor is
significantly more important than the performance risk factor. The RFP
further states that the performance risk, cost/price, and small business and
disadvantaged business utilization plan evaluation factors are equal in
importance. Id. at 1. The RFP provides that under the technical evaluation
factor, subfactors (a) and (b) are equal in importance and significantly
more important than subfactors (c) and (d), which are equal in importance.
With regard to the logistics evaluation factor, subfactor (a) is
significantly more important than subfactor (b). Id. at 2.
The RFP includes a detailed explanation of the agency's intended evaluation
approach, and cautions, among other things, that "[m]ere statements of
compliance or repetition of the technical and/or [l]ogistics requirement
without an intelligent, complete discussion and analysis are
unsatisfactory." Id. The RFP adds that the agency will evaluate each
offeror's proposed technical approach to determine "the extent to which
understanding is exhibited in the operational and technical requirements of
the generator sets." Id. at 3. The RFP specifies that the "proposed
technical approach to each of the tasks delineated in the PD [purchase
description] and SOW will also be evaluated as to completeness, feasibility,
soundness of approach, potential risk, and amount and quality of technical
analysis," and cautions that "[t]he evaluation team will not assume any
technical competence not demonstrated by detailed discussion and analysis in
the proposal." Id.
The RFP includes detailed instructions regarding the preparation of
proposals. The solicitation requests that proposals consist of six volumes,
including technical and logistics volumes, and specifies that neither the
technical nor logistics volumes are to exceed 60 pages in length. RFP
attach. 4, at 1. The RFP states, for example, that the technical proposal
"shall" include "drawings, sketches, graphs, special analyses (e.g., model
test results), calculations, design data, supporting narrative and/or other
technical information outlining the proposed generator set and its
performance characteristics." Id. at 2. The RFP requires that the technical
volume include a "correlation matrix that shows where specific requirements
are addressed in the proposal," and requests that the technical proposals
consist of four sections, with each section to include a number of
subsections. As an example, the RFP requires that section 1 of the technical
proposal, "Technical Design and Performance," include five subsections, with
offerors required under the first subsection A, "Overall Design and
Approach," to address through description and information the following:
design and layout; materials and construction; transportability and handling
characteristics; skid base/housing; treatment and painting; and safety and
human factors. Id. at 2-4.
The RFP also requires that offerors provide oral presentations regarding the
portions of their proposals that correlate to the technical data and the
capabilities, plans, personnel and facilities subfactors of the technical
evaluation factor, and the supportability planning subfactor of the
logistics factor. RFP attach. 04, at 5, 7, 14.
The RFP advises offerors that the agency "reserves the right to award the
contract without negotiations/discussions or Final Proposal Revisions," and
that it "may elect to limit the competitive range . . . for purposes of
efficiency in accordance with [Federal Acquisition Regulation] FAR [sect.]
15.306." RFP attach. 5, at 1.
The agency received four proposals, including Essex's, by the RFP closing
date of September 7, 1999. [2] Contracting Officer's Statement at 6. The
proposals were forwarded to the appropriate evaluation teams. The technical,
logistics, and small business and small disadvantaged business participation
volumes of the proposals were evaluated under the applicable evaluation
factors to assess each proposal's advantages, disadvantages, and
deficiencies, and an item for negotiation (IFN) was prepared for each
evaluated "disadvantage" or "deficiency" to be sent to the respective
offerors after the determination of the competitive range. [3] Agency
Report, Tab F, Initial Source Selection Evaluation Report, Sept. 29, 1999,
at 6-7.
The offerors' initial proposals received the following overall ratings:
Offeror Technical Logistics Performance Small Cost/Price
Risk Business
Participation (Ph. I &
Plan II)
A Good Marginal Low Marginal $6,746,000
B Marginal Marginal Low Marginal $9,174,000
C Outstanding Good Neutral Marginal $4,050,000
Essex Unacceptable Unacceptable Low Marginal $4,978,000
Agency Report, Tab D2, Competitive Range Determination, at 1.
The source selection authority (SSA) determined that Essex's proposal should
be excluded from the competitive range. Id. at 2. The SSA noted that Essex's
proposal was evaluated as unacceptable under the most important subfactors
to the technical and logistics evaluation factors, and could "not be made
acceptable without a major rewrite or revision to [the] proposal." The SSA
also found that Essex's proposal "presented very little originality," and
"‘parroted back' the RFP language indicating that the offeror has very
little comprehension as to how to perform this contract." Id. With regard to
the relative merits of Essex's proposal vis-�-vis the proposals included in
the competitive range, the agency identified 13 deficiencies or
disadvantages in offeror A's proposal, 22 deficiencies or disadvantages in
offeror B's proposal, 12 deficiencies or disadvantages in offeror C's
proposal, and 102 deficiencies or disadvantages in Essex's proposal.
Contracting Officer's Supplemental Statement, Jan. 14, 2000, at 1.
After the agency notified Essex that its proposal had been excluded from the
competitive range, Essex filed an agency-level protest, which the agency
denied. Agency Report, Tab D3, Competitive Range Determination Letter to
Essex; Tab D4, Essex's Agency-Level Protest; Tab D5, Contracting Officer's
Denial of Essex's Agency-Level Protest. The agency's decision denying
Essex's agency-level protest was accompanied by four attachments, which
detailed the deficiencies and disadvantages in Essex's proposal as
identified by the agency in its evaluation. Attachment No. 1 consisted of a
side-by-side comparison of 37 sections of the RFP's PD and the corresponding
sections of Essex's technical proposal, which, in the agency's view,
constituted nothing more than mere statements of compliance with, or
repetition of, the RFP's requirements, and were thus evaluated as
"disadvantages." Attachment No. 2 consisted of another side-by-side
comparison, this time of 24 sections of the RFP and the corresponding
sections of Essex's technical proposal, which were considered by the agency
to contain insufficient information and were also evaluated as
"disadvantages." Also included was attachment A, which identified the 21
"deficiencies" in Essex's technical proposal as evaluated by the agency,
described the relevant section the of the RFP and Essex's proposal's
response, and the agency's reasons as to why the response constituted a
deficiency. Attachment A also listed 16 additional aspects of Essex's
technical proposal that were evaluated by the agency as representing
"disadvantages" that were not specifically due to a blanket statement of
compliance or insufficient information, and described the agency's reasons
for evaluating these aspects of Essex's proposal as representing
"disadvantages." Finally, attachment B (the fourth attachment to the
agency's decision denying Essex's protest) identified three deficiencies
(and one advantage) as evaluated by the agency under the operation and
support analysis subfactor to the logistics evaluation factor, and included
a narrative setting forth the agency's reasoning in this regard. Id., Tab
D5, Contracting Officer's Denial of Essex's
Agency-Level Protest.
Essex subsequently filed its protest with our Office. Essex contends that
the agency's evaluation of its proposal was unreasonable as well as unequal
when compared to the evaluation of the other proposals. Essex argues that,
but for the agency's improper evaluation, its proposal would have been
evaluated at least comparably with the competitive range proposals, and
would have been included in the competitive range.
Essex's protest includes an affidavit from the individual who supervised the
preparation of Essex's proposal. This affidavit addresses each of the 21
deficiencies identified by the agency in attachment A in its evaluation of
Essex's proposal under the technical design and performance and specific
design characteristics subfactors of the technical evaluation factor, and
the 3 deficiencies identified by the agency in attachment B in its
evaluation of Essex's proposal under the operation and support analysis
subfactor to the logistics evaluation factor. This affidavit also
specifically addresses the propriety of the agency's conclusions regarding
the 16 disadvantages in Essex's technical proposal in attachment A as
evaluated by the agency that were not specifically due to a blanket
statement of compliance or insufficient information.
In reviewing an agency's decision to exclude a proposal from the competitive
range, we look first to the agency's evaluation of proposals to determine
whether the evaluation had a reasonable basis. Although in reviewing an
agency's evaluation we will not independently determine the merits of a
proposal, we will examine the record to ensure that the evaluation was
reasonable and consistent with the evaluation criteria. The judgments
involved in an evaluation of proposals are subjective by their nature;
nonetheless, the judgments must be reasonable and must bear a rational
relationship to the announced criteria upon which competing offers are
selected. Safeguard Maintenance Corp., B-260983.3, Oct. 13, 1995, 96-2 CPD
para. 116 at 4.
An offeror must submit an initial proposal that is adequately written and
that affirmatively states its merits, or run the risk of having its proposal
rejected as technically unacceptable. Agencies may exclude proposals with
significant informational deficiencies from further consideration whether
the deficiencies are attributable to omitted or merely inadequate
information addressing fundamental factors. Generally, offers that are
technically unacceptable as submitted and would require major revisions to
become acceptable are not required to be included in the competitive range
for discussion purposes. Global Eng'g & Constr., Joint Venture,
B-275999.4, B-275999.5, Oct. 6, 1997, 97-2 CPD para. 125 at 3.
Based upon our review of the record, the agency's evaluation of Essex's
proposal, and the exclusion of Essex's proposal from the competitive range,
were reasonable. The record reflects that Essex's proposal was downgraded in
large part because the information provided either parroted back in whole or
part the RFP's requirements, with a statement of Essex's intent to meet the
requirements, or simply lacked sufficient information or detail for the
agency to determine that Essex understood the RFP's requirements. Further,
the record does not reflect, as Essex argues, that Essex's proposal was
evaluated unequally as compared to the competitive range proposals.
We first note that, although Essex was informed by the attachments to the
agency's decision denying Essex's agency-level protest of the 102
deficiencies and disadvantages identified by the agency in Essex's proposal,
the protester specifically challenged the propriety of the agency's
conclusions regarding only 24 deficiencies and 16 disadvantages.
Additionally, the protester's specific challenges to the 24 deficiencies
identified by the agency conclude in a number of instances with the
protester's comment that the deficiency identified should have been the
subject of a clarification or a matter raised during discussions. Protest,
attach., Affidavit of Essex's President, at 8-10, 12, 14, 16.
Further, although the agency report included the affidavits of the technical
factor evaluation team chief and the logistics factor evaluation team
leader, which respond in detail to the arguments raised in the protester's
affidavit, Essex's comments on the agency's report only generally argue that
the evaluation was unreasonable. That is, the protester's comments in
response to the report do not specifically respond to any of the
explanations regarding the evaluation of Essex's proposal or views expressed
in the affidavits of the technical factor evaluation team chief and the
logistics factor evaluation team leader.
Nevertheless, given the agency's conclusion that Essex's proposal was
technically unacceptable, and the resultant exclusion of Essex's proposal
from the competitive range, we address below the propriety of the agency's
evaluation through a representative sample of the deficiencies and
disadvantages identified by the agency that were specifically challenged by
Essex in its protest.
The first example concerns the RFP requirement that proposals address the
fuel consumption of the TQGs proposed. RFP attach. 04, at 3. The purchase
description for the 100-kW TQG specified that "[f]uel consumption shall be
no more than
7.6 gallons per hour when the set is operating on low sulfur grade diesel
fuel . . . at all loads up to and including rated load." RFP attach. 2, PD,
100-kW TQG, at 104. The engine Essex proposed for use in its 100-kW TQG, as
reflected by the manufacturer's data Essex attached to its proposal,
provided that the fuel consumption of the engine selected at the appropriate
power requirements was 7.9 gallons per hour. [4] Agency Report, Tab C1,
Essex's Proposal, at 2-19, 2-23, attach. #3-Engine Performance Curve. The
agency thus evaluated Essex's proposal as having a "deficiency" because the
fuel consumption of Essex's 100-kW TQG exceeded the requirements set forth
in the applicable PD. Agency Report, Tab F, Initial Source Selection
Evaluation Report, Sept. 29, 1999, at 36.
Essex complains that the fuel consumption differential between the engine it
proposed and the requirements of the RFP "would not normally be anticipated
to be a ‘deficiency' for rejecting a new engine to meet new
[Environmental Protection Agency] requirements, particularly when
verification of actual requirements was to be accomplished by the Prototype
Testing during Phase I of the Contract to be awarded." Protest, attach.,
Affidavit of Essex's President, at 8. The protester adds that its proposal
offered an alternate engine (at additional cost), which it asserts would
comply with the fuel consumption limitation set forth in the RFP. The
protester concludes that the agency's determination here "is the product of
not requesting an obvious clarification." Id.
Based on our review of the record, the agency's determination here was
reasonable. The engine proposed by Essex for its 100-kW TQG, as evidenced by
the materials Essex supplied with its proposal, simply did not comply with
the RFP's fuel consumption limitation. The fact that Essex's proposal
identified an alternate engine that may comply with the RFP's fuel
consumption limitations does not render the agency's determination improper.
We agree with the agency that the selection of the engine for Essex's
proposed 100-kW TQG was Essex's responsibility, and the fact that Essex
selected an engine which will not comply, based upon the engine
manufacturer's data, with the fuel consumption limitations of the RFP can
certainly reasonably be considered a deficiency in Essex's proposal.
Further, despite Essex's apparent view to the contrary, we fail to see how
the testing to be performed after award of the contract under the RFP and
the subsequent manufacture of prototype TQGs would have somehow aided Essex,
where the manufacturer's data indicates (and Essex does not argue otherwise)
that the testing would only have verified that Essex's proposed 100-kW TQGs
failed to comply with the minimum requirement regarding fuel consumption.
Another example concerns the RFP requirement that the operational weight of
the 100-kW TQG not exceed 7,000 pounds. RFP attach. 04, at 4. The RFP stated
in this regard that proposals "shall include a detailed weight breakdown of
each generator set component with information and data to verify and support
each component weight and demonstrate the ability to comply with the overall
generator weight requirements." Id.
In evaluating Essex's proposal, the agency found that "[a]lthough the
proposal indicates that the weight requirements will be met . . . numerous
components were omitted from the weight analysis." Agency Report, Tab F,
Initial Source Selection Evaluation Report, Sept. 29, 1999, at 36-37. The
agency also found that Essex had failed to submit data supporting the weight
analysis from the manufacturers of the generators for either the 100-kW or
200-kW TQG. Id., Tab D5, Contracting Officer's Denial of Essex's
Agency-Level Protest, attach. A, at 1. The agency thus concluded that this
aspect of Essex's proposal constituted a "disadvantage." Id., Tab F, Initial
Source Selection Evaluation Report, Sept. 29, 1999, at 37.
Essex challenges the agency's determination that this aspect of its proposal
constituted a "disadvantage," arguing that "[t]here was no requirement in
the solicitation to submit manufacturer's supporting data." Protest,
attach., Affidavit of Essex's President, at 8. The protester points out that
its proposal included a weight breakdown which "provided the weights of all
of the major components" of the TQGs. Id. at 8-9; see Agency Report, Tab C1,
Essex's Proposal, attach. #5. Essex adds here that the weights of the
engines were set forth in the engine manufacturer's data provided in Essex's
proposal, and contends that the manufacturer of the generators Essex
proposed for use in its 100-kW and 200-kW TQGs "had supplied the weight
data" Essex had used in formulating its weight breakdown. Protest, attach.,
Affidavit of Essex's President, at 9. Essex also concludes here that the
agency's determination that this aspect of its proposal represented a
disadvantage was the product of "not requesting what was apparently a
desired clarification." Id.
Again, based upon our review of the record the agency's determination here
was reasonable. The weight breakdown in Essex's proposal does not include
"each component" of the TQGs as required by the RFP, but rather, as
explained by Essex, includes only "the major components." Id., at 8-9;
Agency Report, Tab C1, Essex's Proposal, attach. #5. Nor does Essex's
proposal include, with the exception of the engine manufacturer's data, any
information or data verifying or supporting the weights of the components
set forth in Essex's weight breakdown, as required by the RFP.
Another example of the protester's contentions concerns the dimensions of
the 100-kW and 200-kW TQGs. The RFP set forth specific maximum dimensions
for both TQGs, and stated that proposals "shall include a detailed
dimensional breakdown of each generator set component with information and
data to support each component and dimension and demonstrate the ability to
comply with the overall generator set dimensional requirements." RFP attach.
4, at 4. The agency found, in evaluating Essex's proposal, that the
"required detailed dimensional breakdown of each
generator set component was not provided," and concluded that this aspect of
Essex's proposal constituted a "deficiency." Agency Report, Tab F, Initial
Source Selection Evaluation Report, Sept. 29, 1999, at 38.
Essex argues that its proposal should not have been considered deficient,
pointing out that its proposal included two 2-page drawings, one for the
100-kW TQG and the other for the 200-kW TQG. Essex contends that these
drawings should have been considered sufficient by the agency, and to the
extent they were properly determined insufficient, "the agency could have
made a clarification request." Protest, attach., Affidavit of Essex's
President, at 9-10; see Agency Report, Tab C1, Essex's Proposal, attach. #7
(drawings B989-1000 and B989-2000).
Again, given the RFP's requirements, set forth above, regarding the
information to be provided to support the proposed TQGs' ability to comply
with the dimensional requirements detailed in the RFP, and Essex's failure
to provide anything other than basic drawings of the generator set, without
any detailed dimensional breakdown or supporting data, we find the agency's
determination that this aspect of Essex's proposal constituted a deficiency
was reasonable.
Another example concerns the RFP requirement that proposals include certain
information regarding the proposed TQGs' overall design and approach. In
this regard, the RFP specifically requested information in the area of
"[m]aterials and [c]onstruction." RFP attach. 4, at 2. In evaluating Essex's
proposal, the agency found that the proposal did "not provide any
information on the type of sheet metal (steel, composite materials, aluminum
alloy, etc.) that will be used for the generator housing," and determined
that this aspect of Essex's proposal constituted a "disadvantage." Agency
Report, Tab F, Initial Source Selection Evaluation Report, Sept. 29, 1999,
at 24.
Essex argues that "there is no disadvantage" in its proposal's failure to
provide any information in this regard. Protest, attach., Affidavit of
Essex's President, at 25. Essex points out here that "[n]othing in the
Solicitation or the PD defines a requirement for the type of sheet metal to
be used," and adds that its proposal "is based on using steel." Id.
Essex is correct that the RFP does not specify a type of material to be used
here. However, as indicated, the solicitation does require that offerors at
least identify in their proposals the material that they propose to use.
Again, given that Essex's proposal failed to include the information
requested by the RFP in this regard, the agency, which was left to guess
what material Essex may use, acted reasonably in identifying this aspect of
Essex's proposal as a "disadvantage."
Essex also argues that its proposal was unequally evaluated as compared to
the evaluation of the other proposals. The protester first points out here
that, according to the record, the agency found that the other offerors'
proposals also had a large number of disadvantages and deficiencies which
were to be addressed through the issuance of IFNs by the agency. Essex
concludes that, because the agency characterized the number of IFNs as
"large" for the other offerors, the agency's exclusion of Essex's proposal
from the competitive range because its proposal had a large number of
disadvantages and deficiencies was unreasonable and evidenced unequal
treatment. Protester's Comments at 7.
Although the protester is correct that the agency characterized the IFNs
needed for the offerors whose proposals were included in the competitive
range as "large in number," Agency Report, Tab F, Initial Source Selection
Evaluation Report, Sept. 29, 1999, at 71, that characterization does not
alter the fact that the number of IFNs that would have to be issued for
Essex would total approximately 100, while the number of IFNs for offerors
A, B and C totaled 13, 22, and 12, respectively. In short, Essex's argument
that that it was unreasonable to exclude Essex's proposal from the
competitive range because of the very large number of deficiencies and
disadvantages identified in its proposal where "[e]ach of the offerors
retained in the competitive range . . . are noted as having such a
‘large in number' of outstanding IFNs," see Protester's Comments at 7,
is without merit.
In support of its argument regarding the unequal evaluation of proposals,
Essex next provides a list of 24 sections in its proposal and that of
offeror B which address the same technical requirements. Essex contends
that, because its proposal was found to have disadvantages or deficiencies
regarding these sections, and offeror B's proposal was not, the agency
unequally evaluated Essex's proposal compared to the evaluation of offeror
B's proposal. Id. at 7-8.
The agency first points out that, contrary to Essex's comparison of its own
proposal with that of offeror B, neither proposal was downgraded with regard
to 13 of the 24 sections referenced by Essex. Statement of the Technical
Factor Evaluation Team Chief, Jan. 13, 2000, at 5-6. Accordingly, Essex's
reference to the agency's evaluation of these 13 sections of its and offeror
B's proposal in support of its argument that the evaluation of proposals was
unequal is misplaced.
The agency responds to Essex's assertions regarding four of the sections in
Essex's and offeror B's proposals that address the same technical
requirements by explaining in detail the differences in the proposals which
led to the agency's conclusion that these sections of Essex's proposal
represented disadvantages while the sections of offeror B's proposal did
not. Id. at 6-8. Despite having access under our protective order to all
competitive range proposals and all relevant evaluation documents, Essex
does not substantively comment on the agency's response. Rather, Essex
continues to argue in general terms, without again referring to these four
sections of its and offeror B's proposals, that its proposal was unequally
evaluated as compared to the other proposals. In our view, Essex's challenge
here thus constitutes, at best, its mere disagreement with the evaluation
results, and does not provide a basis to find that the evaluation of
proposals was unequal. Global Assocs., Ltd., B-275534, Mar. 3, 1997, 97-1
CPD para. 129 at 9.
The agency concedes that in the remaining seven sections cited by Essex, the
protester's proposal was incorrectly rated (and thus should have been
evaluated as having 95, rather than 102, deficiencies and disadvantages).
Statement of the Technical Factor Evaluation Team Chief, Jan. 13, 2000, at
8. However, given the number of deficiencies and disadvantages remaining,
the overall reasonableness of the agency's evaluation of Essex's proposal
and the determination that it was technically unacceptable is not in doubt.
See Benton Corp., B-249091, Oct. 21, 1992, 92-2 CPD para. 264 at 5 n.7.
Essex points to three other instances where it believes that the contents of
its proposal and that of offeror B are "virtually identical" with regard to
how they address the RFP's requirements, including those concerning the
weight limitations and dimensions requirements discussed previously.
Protester's Comments at 8.
The agency responds, and the record reflects, that offeror B's proposal was
also evaluated as "deficient" with regard to how it addressed the weight
limitations and dimensions of the TQGs as set forth in the RFP. Agency
Report, Tab F, Initial Source Selection Evaluation Report, Sept. 29, 1999,
at 32-33; Statement of the Technical Factor Evaluation Team Chief, Jan. 13,
2000, at 8-9. Accordingly, this example does not represent unequal
evaluation.
In sum, as the above examples indicate, the agency's evaluation of Essex's
proposal and the conclusion that the proposal was technically unacceptable
were reasonable, and the agency did not evaluate the offerors unequally. See
Mid-Ohio Fiberoptics, Inc., B-255924, Apr. 20, 1994, 94-1 CPD para. 269 at 3;
Triton Marine Constr., Corp.,
B-250856, Feb. 23, 1993, 93-1 CPD para. 171 at 3-4.
As indicated above, the protester continually suggests, in response to the
agency's identification of the numerous informational deficiencies in
Essex's proposal, that the deficiencies or disadvantages could have been
addressed through clarifications. Given that the agency reasonably found
Essex's proposal technically unacceptable because of these numerous
informational deficiencies, the purpose of any communication with Essex
would have been to provide Essex with an opportunity to cure the material
defects in its proposal caused by the numerous informational deficiencies.
Wellco Enters., Inc., B-282150, June 4, 1999, 99-1 CPD para. 107 at 7. Such
communications would have thus constituted discussions, which can only be
conducted with offerors whose proposals are included in the competitive
range. FAR sect. 15.306(b), (c).
The protester also contends that it had intended to address during oral
presentations certain items in its proposal that were identified by the
agency as deficiencies or disadvantages under the technical design and
performance and specific design characteristics subfactors of the technical
evaluation factor, and the operation and support analysis subfactor to the
logistics evaluation factor. The protester thus argues that it was improper
for the agency to find its proposal technically unacceptable without first
allowing oral presentations. However, Essex would not have had the
opportunity to address these areas of its proposal during its oral
presentation because the RFP specifically stated that only the technical
data and capabilities, plans, personnel and facilities subfactors of the
technical evaluation factor, and the supportability planning subfactor of
the logistics factor were to be addressed during oral presentations. RFP
attach. 4, at 14.
Essex argues that its failure to include much of the information required by
the RFP was due to the page limitations set forth in the solicitation.
Notwithstanding the fact that Essex concedes that its proposal exceeded the
RFP's page limitations (whereas the competitive range proposals did not),
and was nevertheless considered in its entirety by the agency, Essex's
argument here--that the RFP's page limitations were inadequate--raised after
the receipt of proposals is untimely and will not be considered. See IMODCO,
B-216259, Jan. 11, 1985, 85-1 CPD para. 32 at 4.
Finally, the protester argues that the exclusion of its proposal from the
competitive range was improper because "FAR Subpart 15.306 permits a
limitation of the competitive range only if the number of proposals that
would otherwise be included in the competitive range would be too numerous
to permit efficient negotiation." Protester's Comments at 9. The protester's
reading of FAR sect. 15.306(c) is simply incorrect. Where, as here, discussions
are to be conducted, agencies are required to "establish a competitive range
comprised of all of the most highly rated proposals, unless the range is
further reduced for purposes of efficiency pursuant to subparagraph (c)(2)
of this section." FAR sect. 15.306(c). Thus, an unacceptable proposal, such as
the protester's, can be excluded from the competitive range because it was
not among the most highly rated proposals, SDS Petroleum Prods., B-280430,
Sept. 1, 1998, 98-2 CPD para. 59 at 5, and the regulation further provides that
yet more proposals can be eliminated from the competitive range for purposes
of efficiency if it has been announced in the RFP, as was the case here. See
Kathpal Techs., Inc.; Computer & Hi-Tech Management, Inc., B-283173.2 et
al., Dec. 30, 1999, 2000 CPD para. __, at 11.
The protest is denied.
Comptroller General
of the United States
Notes
1. The RFP provides that multiple awards may be made for the Phase I effort.
In the event multiple awards are made for the Phase I effort, the
solicitation provides that the Phase II option will be awarded to the "best
value" contractor. RFP Executive Summary.
2. Although the RFP requested that offerors submit the past performance
volume of their proposals to the agency by July 30, Essex did not submit its
past performance volume until August 13. The agency nevertheless considered
Essex's past performance volume as timely received. Contracting Officer's
Statement at 6; Agency Report, Tab F, Initial Source Selection Evaluation
Report, Sept. 29, 1999, at 3.
3. The agency chose not to complete its evaluation or assign ratings to the
technical volumes of the offerors' proposals under the technical data and
capabilities, plans, personnel and facilities subfactors to the technical
evaluation factor, or to the logistics volumes of the offerors' proposals
under the supportability planning subfactor to logistics factor, until oral
presentations were conducted.
4. Although apparently not considered by the technical factor evaluation
team during its evaluation of Essex's proposal, we note that Essex's
logistics proposal states its proposed 100-kW TQG will consume 8 gallons of
fuel per hour. Agency Report, Tab CI, Essex Proposal, at 3-1.A.