TITLE:  SDS International, B-285821, September 21, 2000
BNUMBER:  B-285821
DATE:  September 21, 2000
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SDS International, B-285821, September 21, 2000

Decision

Matter of: SDS International

File: B-285821

Date: September 21, 2000

Barbara S. Kinosky, Esq., James S. Phillips, Esq., and Rachel Smith, Esq.,
Williams, Mullen, Clark & Dobbins, for the protester.

David R. Johnson, Esq., and Michael K. Murphy, Esq., Gibson, Dunn &
Crutcher, for NLX Corporation, the intervenor.

Gregory H. Petkoff, Esq., Robert D. M. Allen, Esq., and Warren D. Leishman,
Esq., Department of the Air Force, for the agency.

Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. New and independent grounds of protest included in a protester's comments
on the agency report must independently meet the timeliness requirements of
the General Accounting Office's Bid Protest Regulations; extensions of time
for filing comments do not waive the timeliness requirements.

2. Contracting agencies are not obligated to afford all-encompassing
discussions that "spoon-feed" an offeror each item that must be addressed to
improve a proposal; agencies are only required to lead offerors into the
areas of their proposals considered deficient and requiring amplification.

DECISION

SDS International protests the award of a contract to NLX Corporation under
request for proposals (RFP) No. F44650-00-R-0004, issued by the Department
of the Air Force for F-4 aircrew training and courseware development for the
German Air Force contingent assigned to Holloman Air Force Base, New Mexico.
SDS argues that the agency improperly failed to conduct meaningful
discussions with SDS and maintains that the agency's best value
determination was flawed.

We deny the protest.

BACKGROUND

The RFP, issued March 7, 2000 as a total small business set-aside,
contemplated the award of a fixed-priced contract for a phase-in period, a
base year, and up to four 1-year option periods. The statement of work (SOW)
divided the specific tasks into three categories (1) contract aircrew
training (CAT), (2) courseware development (CWD), and (3) general tasks. The
RFP listed past performance, mission capability, risk, and price as
evaluation factors, with the past performance and mission capability factors
considered of "primary and equal importance." SOW sect. 9, para. 1, at 22. Within
the mission capability factor, the RFP also listed the following three
subfactors in descending order of importance: program and workload
management (PWM), instructional systems development (ISD) management plan,
and phase-in. The RFP explained that in assessing each offeror's past
performance, evaluators would assign an adjectival rating ranging from
"unsatisfactory/no confidence" to "exceptional/high confidence." The RFP
further explained that each subfactor within the mission capability area
would be assigned a color and adjectival rating (red/unacceptable,
yellow/marginal, green/acceptable, or blue/exceptional). Proposals would
also be assigned risk ratings at the subfactor level (low, moderate, or
high) to reflect the strengths and weaknesses associated with each offeror's
proposed approach. The RFP stated that price would not be numerically scored
but would be evaluated for reasonableness. Award was to be made to the
offeror whose proposal was determined to be most advantageous to the
government.

Five offerors, including SDS and NLX, responded to the RFP by the time set
on April 7 for receipt of initial proposals. A source selection evaluation
team (SSET) evaluated proposals; the agency conducted discussions; and the
SSET reevaluated final proposal revisions, with the following results for
the protester and the awardee:

 Mission Capability

       Past           PWM/Risk     ISD/Risk   Phase-in/Risk  Price
       Perf./Conf.

 SDS   Very           Green/Mod.   Blue/Low   Green/Low      $3,749,321
       Good/Sign.

 NLX   Very           Green/Low    Blue/Low   Green/Low      3,851,160
       Good/Sign.

Agency Report (AR) at 2; and AR exh. 13, Proposal Evaluation Report (PER),
attach. 2, Rating Team Worksheets.

Based on the results of the final evaluation the SSET recommended that NLX
be awarded the contract. In reviewing that recommendation, the contracting
officer (CO), who was the source selection authority (SSA) for this
procurement, noted that SDS's and NLX's proposals were highly rated and,
with the exception of the risk rating under the PWM subfactor, both
proposals earned identical ratings across all evaluation factors. The SSA
noted that the primary difference between NLX's and

SDS's proposals was the [DELETED]. In this regard, the SSA found that
[DELETED]. Noting this difference, as well as other strengths the evaluators
identified in NLX's proposal, the SSA concluded that NLX's proposal was most
advantageous to the government, and awarded the contract to that firm. This
protest followed a debriefing by the agency.

PROTEST ISSUES

In its initial protest, SDS primarily challenged the evaluation of its
proposal under the PWM subfactor, arguing that the "moderate" risk rating
assigned its proposal was inconsistent with the agency's evaluation of SDS's
performance on another recent contract for CAT services and with the RFP's
criteria. Specifically, SDS maintained that "[g]iven the record and the
evaluation criteria set forth in the RFP, [the agency] had no basis to
assign SDS less than a ‘Green/Low' rating for the PWM plan." Protest
at 18. SDS also argued that in evaluating its proposed [DELETED], the agency
applied undisclosed evaluation criteria. In this connection, SDS argued that
its "[DELETED] be considered minimal unless [the agency] has additional
workload requirements that are not disclosed in the solicitation."
Id. at 22. The agency responded to these allegations in its report, and the
protester does not take issue with the agency's position in this regard.
Accordingly, we consider these issues abandoned. See Rockwell Int'l Corp.,
B-261953.2, B-261953.6, Nov. 22, 1995, 96-1 CPD para. 34 at 12 n.14.

In its comments, SDS asserts for the first time that the evaluation of
competing proposals under the past performance subfactor was unreasonable.
In this connection, SDS argues that "SDS and NLX were accorded the same
‘Very Good' past performance rating even though SDS has significant
successful past performance of CAT and CWD contracts while NLX does not."
Protester's Comments at 13. SDS also argues that the agency's performance
risk evaluation was flawed. In this connection, SDS asserts that the CO
"improperly credited NLX with a performance risk advantage that was not
provided for in NLX's [DELETED] proposal, and which was improperly imputed
to NLX from SDS's creative [DELETED]." Id. at 15. As explained below, these
new arguments are untimely raised.

Under our Bid Protest Regulations, protests not based upon alleged
solicitation improprieties must be filed not later than 10 days after the
basis for protest is known. 4 C.F.R. sect. 21.2(a)(2) (2000). Where a protester
initially files a timely protest and supplements it with new and independent
grounds of protest, the new allegations must independently satisfy these
timeliness requirements; our Regulations do not contemplate the unwarranted
piecemeal presentation of protest issues. Litton Sys., Inc., Amecom Div.,
B-275807.2, Apr. 16, 1997, 97-1 CPD para. 170 at 4 n.1. Here, while SDS's
initial protest was filed in a timely manner, SDS did not challenge the
evaluation of proposals under the past performance subfactor, nor did it
challenge the CO's performance risk assessment on the grounds SDS asserts in
its comments. SDS was aware of these bases of protest, at the latest, upon
its receipt of the agency report on August 16, but did not raise these new
issues within 10 days after SDS received the report. SDS's comments, filed
on August 30, were not filed within the 10-day period prescribed by our
Regulations, because we granted SDS's request for an extension of time
within which to file them. See 4 C.F.R. sect. 21.3(i). An extension for purposes
of filing comments, however, does not waive the timeliness rules with regard
to new grounds of protest. SDS Petrol. Prods., Inc., B-280430, Sept. 1,
1998, 98-2 CPD para. 59 at 3-4 n.3. Accordingly, these new protest issues are
untimely, and will not be considered. [1]

There are two other issues which were timely raised in SDS's initial
protest. First, SDS alleges that the agency failed to conduct meaningful
discussions with the firm. According to the protester, had the agency
conducted proper discussions regarding its [DELETED] concerns, SDS could
have either changed its [DELETED] or provided additional information to
allay the evaluators' concerns. Second, SDS challenges the agency's best
value determination. [2]

ANALYSIS

Discussions

SDS's proposal was downgraded for [DELETED]. Specifically, in its initial
proposal, SDS [DELETED]. The evaluators were concerned with this approach,
noting that if [DELETED]. The protester maintains that had the agency raised
this specific concern, SDS could have either changed its proposal or
provided additional information to allay the evaluators' concerns.

While agencies generally are required to conduct meaningful discussions by
leading offerors into the areas of their proposals requiring amplification,
this does not mean that an agency must "spoon-feed" an offeror as to each
and every item that must be revised or otherwise addressed to improve a
proposal. LaBarge Elecs., B-266210, Feb. 9, 1996, 96-1 CPD para. 58 at 6.

The record shows that after evaluating initial proposals, the agency
conducted written discussions by providing evaluation notices (EN) to all
offerors whose proposals were retained within the competitive range,
including SDS. For each evaluation factor or subfactor, the ENs requested
clarifications, identified deficiencies in the proposals, and requested
offerors to address specific questions. As relevant here, two of the ENs
submitted to SDS stated as follows:

[DELETED]. Please address this concern.

[DELETED]?

AR, exh. 10, Memorandum for SDS, Apr. 25, 2000, attach.

In view of the evaluators' concern over SDS's proposed [DELETED], it is
clear that the ENs, which notified SDS of the specific concern, reasonably
led the firm into the area of its proposal identified as a deficiency and in
need of amplification or correction. The protester was clearly placed on
notice that the evaluators found that its proposed [DELETED] would be
overtasked with responsibilities, and was asked to address this concern. In
fact, the record shows that SDS understood the agency's concern and
increased its [DELETED] in its final proposal revision. Based on our review
of the record, it is clear that although the agency provided SDS with an
opportunity to address the SSET's concern and, the firm, in fact, did so in
its final proposal revision, SDS simply failed to respond with sufficient
[DELETED] to allay the evaluators' specific concern.

Best Value Determination

SDS's contention that the agency's best value determination was flawed is
predicated on the assumption that the award decision was defective because
it resulted from defective underlying technical evaluations. As already
explained, SDS abandoned the issue concerning the evaluation of its proposal
under the PWM subfactor, and raised other untimely issues regarding the
underlying evaluation which will not be considered. Accordingly, we have no
basis to object to the agency's award decision on the grounds asserted by
SDS.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. In supplemental rebuttal comments, SDS argues that its challenge to the
past performance rating assigned NLX's proposal was timely raised because it
first learned of this protest basis upon receipt, on August 24, of the
agency's response to SDS's supplemental document request, which SDS
maintains contained debriefing materials related to a different procurement
concerning NLX's performance history. The record clearly shows, however, and
SDS concedes, that the PER provided to SDS with the initial agency report
for the instant procurement contained the evaluation of NLX's performance
history under this RFP, accompanied by a narrative explanation of the
agency's rationale supporting the past performance rating assigned NLX's
proposal. AR exh. 13, PER, at 6; and attach. 2. The debriefing materials
subsequently provided to SDS in response to the supplemental document
request contain virtually identical information to that in the PER for this
procurement. Thus, to be timely, SDS was required to raise its arguments
concerning the evaluation of NLX's past performance within 10 days of its
receipt of the agency report. Further, as explained below, the evaluation of
NLX's proposal under another, unrelated procurement involving different
aircraft is irrelevant to determining the reasonableness of the evaluation
here.

2. SDS also argues that the evaluation of its proposal under this RFP was
inconsistent with the evaluation of a virtually identical proposal it
submitted under a different RFP, also issued by the Air Force for CAT and
CWD services involving different aircraft. The agency responds that these
were distinct procurements, each with independent evaluation teams, SSAs,
and separate operating environments particular to the weapons systems for
which the services are required. In this regard, we do not find it unusual
or improper that different evaluators have different perceptions of the
merits of proposals, especially where, as here, the work involves different
aspects of the program. See, e.g., SRS Tech., B-270341.2, Mar. 1, 1996,
96-1CPD para. 120 at 4 n.4; Centex Constr., Co., Inc., B-238777, June 14, 1990,
90-1 CPD para. 566 at 6. Moreover, each acquisition stands on its own, and the
evaluation and relative ranking of SDS's proposal under another procurement
are irrelevant to determining the reasonableness of the evaluation here. See
Renic Corp., Gov't Sys. Div., B-248100, July 29, 1992, 92-2 CPD para. 60 at 5.
We note that SDS has filed separate protests challenging the evaluation of
its proposal under the other solicitation, and we anticipate addressing
SDS's contentions in a separate decision.