TITLE:  North American Aerodynamics, Inc., B-285651, September 15, 2000
BNUMBER:  B-285651
DATE:  September 15, 2000
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North American Aerodynamics, Inc., B-285651, September 15, 2000

Decision

Matter of: North American Aerodynamics, Inc.

File: B-285651

Date: September 15, 2000

James J. McCullough, Esq., and Catherine E. Pollack, Esq., Fried, Frank,
Harris, Shriver & Jacobson, for the protester.

Michael A. Hordell, Esq., and Laura L. Hoffman, Esq., Gadsby & Hannah, for
Triangle Parachute LLC, an intervenor.

Brian Howell, Esq., Department of the Navy, 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

Agency's evaluation of protester's past performance was reasonably based
upon comments received from one of protester's references and the agency's
assessment of protester's subcontract performance under the prior contract
for the required items, where the agency, despite repeated attempts, could
contact only one of protester's three references listed in the protester's
proposal.

DECISION

North American Aerodynamics, Inc. protests the award of a contract to
Triangle Parachute LLC under request for proposals (RFP ) No.
N00174-00-R-0018, issued by the Department of the Navy, for the manufacture
of subassembly panels, parachutes, and deployment bags in support of the
Navy's Distributed Explosive Technology (DET) system. [1] North American
challenges the agency's evaluation of its and Triangle's proposals, and
contends that Triangle misrepresented its commitment to meet the contract
delivery schedule.

We deny the protest.

The RFP, issued as a small business set-aside, provided for the award of a
fixed-price contract for the manufacture of parachutes and other supplies in
accordance with government drawings and design specifications. Delivery was
required within
120 days after contract award, and offerors were informed that failure to
propose a delivery schedule consistent with this requirement would result in
the rejection of the offer.

The RFP provided for award without discussions on the basis of a
cost/technical tradeoff, and stated the following evaluation factors and
subfactors:

 Offeror submission

 Offeror capability

              1. Technical capability

              a. Manufacturing experience and
              capability

              b. Quality assurance

              c. Inspection

              2. Facilities

              3. Past Performance

 Price

Offerors were informed that the offeror submission factor (which concerns
the offerors' completion of Standard Form 33 and promise to meet
requirements such as the delivery schedule) would be evaluated on a
pass/fail basis and that the offeror capability factor would be
qualitatively evaluated. Within the offeror capability factor, the past
performance subfactor was stated to be equal in value to the technical
capability and facilities subfactors. The RFP provided that the evaluation
ratings for the offeror capability factor would be used to calculate a level
of confidence rating (LOCAR). The LOCAR score was stated to be more
important than price.

Detailed proposal preparation instructions were provided with regard to each
of the offeror capability evaluation factors and subfactors. With respect to
the technical capability subfactor, offerors were instructed to provide
information demonstrating the firms' "having gained experience in the
manufacturing of same or similar panels, parachutes and bags" on contracts
within the past 5 years and to provide a brief description of the scope of
past contracts that "demonstrate the offeror's ability to meet the
requirements of the [statement of work];" offerors were also required to
demonstrate the capability to develop and implement a strong quality
assurance program and product inspection plan. RFP at 40. For the facilities
subfactor, offerors were to identify their proposed facilities and "the
specific equipment and tooling located at the facility(s) which will be
utilized to support manufacturing efforts." RFP at 41. With respect to the
past performance subfactor, offerors were instructed to provide at least
three references who would be able to provide information for contracts
within the past 3 years concerning the quality and timeliness of the
offeror's work; the reasonableness of its pricing, costs, and claims; the
reasonableness of its business behavior; its concern for the interest of its
customers; and its integrity. Offerors were cautioned that the "[f]ailure of
an offeror's references to respond within the allotted time frame will
result in the inability of the Government to rank the offeror's past
performance and will [a]ffect the overall LOCAR." Id.

The Navy received offers from North American and Triangle, which were
evaluated as follows by the agency's technical evaluation panel (TEP):

                                North American  Triangle

 Offeror submission             Pass            Pass

 Offeror capability             Good            Good

      Technical capability      Good            Good

      Facilities                Good            Good

      Past Performance          Good            Good

 LOCAR                          .80             .80

 Price                          $[DELETED]      $175,476

Agency Report, Tab D, Business Clearance Memorandum (BCM), at 7-8. The TEP
found that both the protester and awardee demonstrated "full knowledge and
understanding of the steps required to produce array panels and parachutes"
under the RFP and had "demonstrated the experience and capability to
manufacture array panels as required by drawings/specifications." Id., Tab
F, Technical Evaluation, at 4-5. The TEP also cited North American's and
Triangle's proposed personnel, equipment, and material as providing the
evaluators with confidence in North American's and Triangle's manufacturing
experience and capability. Specifically, with respect to the facilities
subfactor, the TEP made the identical finding that the firms had "all of the
resources and facilities to ensure that they meet or exceed all of our
drawing/specification requirements." Id. Both firms' past performance
references were found to justify a "good" evaluation rating; the TEP noted
with respect to North American as follows:

Sources indicate, however, that North American takes a while to come up to
speed for production and that previous flaws and reworks pertaining to past
purchases of nets were on the high side which is contrary to what North
American claims in the report.

Id. at 5. The TEP recommended that the award decision be based upon price,
given the firms' identical LOCAR scores. Id.

The contracting officer concluded that the two offers were technically
equal, which resulted in an award without discussions on May 4, 2000 to
Triangle on the basis of that firm's lower proposed price. Id., Tab D, BCM,
at 10. After receiving a debriefing, North American filed this protest.

North American first objects to the Navy's evaluation of its proposal under
the past performance subfactor as "good," complaining that the Navy
contacted only one of its three listed references and that the Navy
misevaluated the comments made by this reference. [2] North American also
objects to the Navy's assessment of North American's subcontract performance
under the prior contract for these items, which was not a listed past
performance reference, and which the Navy found to be "good," because it is
based upon comments made by an evaluator in the evaluation of North
American's proposal under the technical capability subfactor and not the
past performance subfactor. The protester asserts that its past performance
should have been evaluated as "excellent."

In reviewing protests against allegedly improper evaluations, it is not our
role to reevaluate proposals. Rather, our Office examines the record to
determine whether the agency's judgment was reasonable and in accord with
the RFP criteria.
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. The
protester's mere disagreement with the agency's judgment does not establish
that an evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658,
Nov. 7, 1997, 97-2 CPD
para. 134 at 7.

Here, the RFP provided for a qualitative evaluation of offerors' past
performance and requested that offerors provide references for work
performed in the past 3 years that would provide the basis for this
evaluation. As the Navy points out, the RFP placed the risk of failure to
reach references on the offeror. See RFP at 41. The Navy states that it
repeatedly attempted to contact the protester's three references, leaving
messages for two of the references, and ultimately receiving a response from
only one of the references. [3] Agency Report at 5-6. Using that response,
and its own knowledge of the protester's past performance as a subcontractor
under the prior contract, the Navy concluded that the protester's overall
past performance was "good." [4]

The Navy and protester have filed competing affidavits (from the Navy's past
performance evaluators and the protester's three listed references), from
which the protester requests that we find that the Navy did not attempt to
contact the two references outside the United States and that the Navy
misevaluated the information it received from the one response.

With respect to whether the Navy attempted to contact the two references
outside the United States, we have no basis to conclude the Navy did not
repeatedly attempt to contact these references, as the agency states. The
affidavit from a Navy past performance evaluator describes with some
specificity her attempts to call one reference whose telephone was never
answered and her leaving of messages for another reference who did not
respond to the Navy. [5] This affidavit is consistent with the evaluation
documentation in the record. Agency Report, Tab F, Technical Evaluation at
22-23.

The protester states, with respect to the reference in Ireland, for which
the Navy states the telephone was never answered, that this reference did
not receive a call, does not have an answering machine, works alone in his
office, and could only have been reached during a 2ï¿½-hour period of the
Navy's business day (considering time zone differences). We find that the
evaluator's affidavit is not inconsistent with that submitted by the
protester; both affidavits reflect that the Navy was unable to reach this
reference.

The protester states, with respect to the reference in Thailand, for which
the Navy states that it left messages either with someone or on an answering
machine, that this reference also does not have an answering machine or
voice mail and that neither the reference, nor his wife or secretary
received any calls. The reference also states that his business phone also
rings in his home, in which he has three servants, but that none of the
servants speak English. We find that this statement fails to establish that
no one in the individual's office or home received a message from the Navy.
Although the reference insists that, if a message had been received, he
would have been informed, we find, given the number of people other than the
individual that could have answered the telephone (five other persons), that
this does not affirmatively rebut the Navy's sworn statement that the calls
were made and messages left. [6]

North American also argues that the affidavit of the one reference that
responded to the Navy's request for information demonstrates the
unreasonableness of the Navy's assessment of the protester's past
performance as good. Specifically, this affidavit declares that this
reference left a voice mail for the Navy stating that North American was

a quality supplier for me, that they had always produced a top quality
product, that they provided excellent technical assistance, that their price
was always well within reason, and they had always met their delivery
schedules. I recall concluding my voice mail message with a statement to the
effect of "I do not believe the Navy could find a better supplier."

Even if we agree with the protester that the information provided by this
reference should have led to an "excellent" rating for this reference, this
does not demonstrate that the agency's overall past performance rating of
"good" was unreasonable. Specifically, the Navy also considered North
American's past performance as a subcontractor under the prior contract
manufacturing DET exoskeletons and associated items, and assessed this
subcontract performance as only good.

The protester does not contend that its subcontract performance should be
rated higher than "good," but objects that the information forming the basis
for this rating was taken from an evaluator's comments under the technical
capability subfactor. This particular evaluator, however, was the technical
representative for the prior contract under which North American's
subcontract services were performed and thus had personal knowledge of North
American's performance. In this regard, North American's proposal recognized
the evaluator's familiarity with its subcontract performance, in that the
technical capability portion of the proposal listed this subcontract and
identified him as the technical point of contact. Also, the contracting
officer states that he has personal knowledge of North American's
subcontract performance under this subcontract and considered its
performance to warrant a "good" rating.

In sum, we think the agency reasonably found North American's overall past
performance to be good, as defined in the source selection plan, considering
its subcontract performance, even giving the protester the benefit of the
doubt regarding the information provided by the reference who responded to
the Navy.

North American also complains that if the Navy is allowed to consider its
subcontract performance in the past performance evaluation, the Navy should
also evaluate Triangle's performance prior to 1996 of a development contract
with the Navy for panel subassemblies (part of the required items under this
contract).
North American alleges that Triangle was not required to meet the Navy's
specifications in producing these developmental items. [7]

We disagree with the protester. The RFP provided that only contract
performance within the past 3 years would be considered in evaluating
proposals under the past performance subfactor. The Triangle contract
performance, to which North American points, is outside the past 3 years.
Moreover, unlike North American, Triangle identified more than the minimum
three references for past performance, and the Navy had no difficulty
obtaining past performance information from Triangle's references upon which
to base its evaluation.

Also, based on a declaration submitted by the protester, North American
argues that Triangle's technical capability should have been judged inferior
to North American's, because North American assertedly performed to the
specifications and Triangle in its performance of this one developmental
contract assertedly did not. In the evaluation of Triangle's proposal under
the technical capability subfactor, the Navy credited Triangle with having
performed contracts in accordance with specifications.

That declaration does not provides us with a basis to question the Navy's
assessment of Triangle's technical capability as "good." As noted above, the
protester alleges that Triangle was not required to meet the Navy's contract
specifications in performing a developmental contract prior to 1996 for
panel subassemblies. Specifically, the declaration states that "[i]n
producing these developmental items,
I believe the Navy was more concerned with obtaining a functional item than
with meeting the exact tolerances set forth in the specification." Even
accepting these statements on their face regarding this one contract, [8] we
note that the Navy's evaluators based their decision on Triangle's
performance of a number of contracts "for this type of work," Agency Report,
Tab F, Technical Evaluation, at 13, and Triangle's proposal identifies a
number of contracts that the awardee has had with the Navy to manufacture
items for the DET system. Agency Report, Tab G, Triangle Technical Proposal,
exh. A. The protester does not state which, if any, of Triangle's listed
contracts is the developmental contract to which it refers. Also, most of
the listed contracts were performed after the signer of the declaration had
left Triangle's employ, and thus he could not be familiar with Triangle's
performance of these contracts. Given that the evaluators relied upon
Triangle's performance of a number of contracts, we do not think that North
American's arguments concerning one developmental contract demonstrate the
agency's technical capability evaluation was unreasonable.

Moreover, the RFP provided that the consideration of an offeror's technical
capability would consider a number of elements, including the offeror's
manufacturing experience and capability, quality assurance program, and
product inspection plan. RFP at 40, 45. Consistent with this, the Navy
determined that Triangle's technical capability was "good" overall,
considering the firms' past manufacturing experience, personnel and
equipment, quality assurance program, and proposed inspection plan. Agency
Report, Tab F, Technical Evaluation, at 3. Because the evaluators' reference
to Triangle's performance of previous contracts formed only one part of
Triangle's overall rating for this subfactor, it does not appear that
Triangle's performance of this one contract, even if it had been considered
and different specifications were involved, would have any substantial
impact on the overall technical capability rating.

North American also protests that Triangle misrepresented its ability to
satisfy the contract delivery schedule. Specifically, the protester argues
that immediately after being notified of the intended award to Triangle,
North American informed the Navy that Triangle could not obtain sufficient
quantities of 2-inch Kevlar tape from its anticipated supplier, Bally Ribbon
Mills, within the time required to allow for performance because Bally did
not have sufficient quantities of the tape in inventory and had a long-lead
time to supply the tape. North American also informed the Navy that Triangle
did not have the specialized tooling necessary to perform within the time
required.

In response to North American's complaint, the Navy called Triangle on May 2
to confirm whether Triangle intended to satisfy the contract delivery
schedule, considering the availability of Kevlar tape. [9] Agency Report,
Tab G, Note of Navy's Telephone Call, May 2, 2000. Triangle responded to the
Navy with a written memorandum confirming that Triangle would satisfy the
contract delivery schedule; Triangle stated that it planned to use multiple
sources for the 2-inch Kevlar tape, including Bally and Narricot Industries,
and that Triangle was willing to devote whatever resources were necessary,
including scheduling additional manufacturing shifts, to satisfy the
contract schedule. [10] Agency Report, Tab G, Awardee's Memorandum to the
Navy, May 2, 2000. The Navy concluded that this was sufficient to establish
that the awardee was promising to satisfy the contract schedule. On July 25,
well after contract award and the filing of this protest, the Navy visited
Triangle to assess the firm's contract progress and found that, after
consideration for the agency's stop work order due to the protest, Triangle
will timely complete the contract in September. Agency Trip Report, July 26,
2000.

We find that the question of whether Triangle will be able to meet the
required delivery schedule concerns the affirmative determination of
Triangle's responsibility. Offerors were not requested to describe their
proposed technical approach to performing the contract or how they intended
to satisfy the contract delivery schedule. Rather, offerors could either
promise to satisfy the RFP delivery schedule of 120 days after contract
award or propose a quicker delivery schedule. Triangle promised to delivery
within 120 days of contract award. We will not review affirmative
determinations of responsibility absent a showing of possible bad faith on
the part of government officials or that definitive responsibility criteria
in the solicitation were not met, neither of which circumstance exists here.
4 C.F.R. sect. 21.5(c) (2000).

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. The DET is a mine clearance system, using a rocket-launched explosive
array that is deployed from the deck of a landing craft to clear mines in a
launch zone. See 

2. The protester appears to believe that it was permitted to provide only
three references for the past performance evaluation. See Protester's
Comments at 13. This is incorrect inasmuch as the RFP requested a "minimum
of three (3) references." RFP at 41.

3. The two nonresponding references are located in Thailand and Ireland.

4. The Navy's source selection plan provides that past performance would be
rated "good" where most sources of information state that the firm's
performance was good, and that any complaints are few and minor. An
"excellent" rating was stated to represent that a significant majority of
sources are consistently firm in stating that the offeror's performance was
superior.

5. We note that another evaluator also states that he unsuccessfully tried
to reach these references.

6. We recognize that the Navy's past performance evaluator stated in her
declaration that she either left a message with someone or on an answering
machine and that the reference in Thailand states that he does not have an
answering machine. The Navy's evaluation documentation does not indicate how
the message was left. We do not find that the evaluator's lack of
recollection on this point discredits the remainder of her statement that
she left a message, given the evaluation documentation that indicates that
messages were left in some fashion.

7. The protester acknowledges in the declaration submitted with its comments
that the specifications have been revised since the time Triangle was
producing the initial developmental items.

8. In this regard, we note that it is not unusual in developmental contracts
for the contract specifications to be modified.

9. North American initially protested that the agency's request for
information from Triangle concerning that firm's intent to satisfy the
delivery schedule constituted discussions, which required discussions with
North American and a request for final proposal revisions. The Navy
responded in some detail in its report that the request constituted
clarifications and not discussions. North American did not address the
agency's response in its comments, and accordingly we consider this
allegation to have been abandoned.

10. We recognize that the RFP requested that offerors, in addressing the
facilities subfactor, identify the specific equipment and tooling located at
the facility the firm intended to use for performance. RFP at 41. Both
Triangle and North American provided general statements in their proposals
that the firms had performed the work in the past and had the same
facilities available. See Agency Report, Tab G, Triangle Technical Proposal,
at 10; Tab H, North American Technical Proposal, at 5. We find that the
firms were treated equally with respect to this subfactor.