TITLE: Martin Electronics, Inc.--Costs, B-291732.2, April 22, 2003
BNUMBER: B-291732.2
DATE: April 22, 2003
**********************************************************************
Martin Electronics, Inc.--Costs, B-291732.2, April 22, 2003
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Martin Electronics, Inc.--Costs
File: B-291732.2
Date: April 22, 2003
James J. McCullough, Esq., Louis D. Victorino, Esq., and Steven A.
Alerding, Esq., Fried, Frank, Harris, Shriver & Jacobson, for the
protester.
Maj. Edward E. Beauchamp, and William G. Bradley, Esq., U.S. Army Materiel
Command, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency unduly delayed taking corrective action until after submission of
the supplemental agency report, the protester's comments on that
supplemental report, and a hearing notice, in the face of a clearly
meritorious protest that the agency's selection of one awardee was
unreasonable and unsupported and that the agency's evaluation of another
awardee's proposal was inconsistent with the solicitation's stated
evaluation criteria; accordingly, General Accounting Office recommends
that the protester be reimbursed for the costs of filing and pursuing its
protest.
DECISION
Martin Electronics, Inc. (MEI) requests that our Office recommend that it
be reimbursed the reasonable costs of filing and pursuing its protest
challenging awards made to Pyrotechnic Specialties, Inc. (PSI) and
Valentec Systems, Inc., by the U.S. Army Operations Support Command (OSC)
under request for proposals (RFP)
No. DAAA09-02-R-0078 for M583A1 White Star Parachute 40mm cartridges.
After receipt of the protester's comments on the agency's supplemental
report, and after our Office scheduled a hearing, the agency took
corrective action in response to the protest. Based upon the corrective
action, we dismissed the protest as academic. MEI contends that the
agency unduly delayed taking corrective action in the face of its clearly
meritorious protest.
We grant the protester's request and recommend that the agency reimburse
the protester its reasonable costs of filing and pursuing the protest.
The OSC issued the solicitation on May 3, 2002 seeking fixed-price
proposals from firms that could provide 138,134 M583A1 White Star
Parachute 40mm cartridges, with a 100 percent evaluated option. The
cartridge is an illuminating 40mm round which is shoulder-fired from
grenade launchers and used for training and combat to illuminate the
battlefield. MEI holds a current OSC contract to provide these
cartridges.
The Army planned to award one contract, but reserved the right to make a
split award based upon a 61/39 percent division of the requirement. RFP
S: A.l. Offerors were advised that award might be made without the
conduct of discussions. Id.
S: A.i. Award was to be made to a firm whose proposal represented the
best value to the government, which was to be determined after an
integrated assessment of five evaluation factors: recent, relevant past
performance; product-to-process enhancement efforts; technical capability;
price; and small business utilization.
RFP S: M-1, amend. 1. The first three evaluation factors were of equal
importance, and were significantly more important than price.[1]
With respect to the recent, relevant past performance factor, the RFP
defined *recent* as occurring within the 3 years prior to the solicitation
closing date, and defined *relevant* as *producing the same or similar
items, requiring the same or similar manufacturing processes, skills, and
abilities.* Id. The recent, relevant past performance factor was
comprised of two equally important subfactors, on-time delivery and
quality. Offerors were required to submit a description of their
government/commercial contracts received or performed during the 3 years
prior to closing of this solicitation; these descriptions were to address
such things as whether deliveries had been made on time and whether any
quality problems had been encountered. RFP S: L-9(a).
Section M-1 of the solicitation characterized the product-to-process
enhancement efforts factor as:
Information provided by the offeror that demonstrates contractor's efforts
to incorporate process improvements and initiatives to enhance product or
performance on same or similar items. Information provided by the offeror
on internal programs or innovations initiated by the offeror, based on
production experience or knowledge of product-to-process
inter-relationships, that resulted in recommended design or production
process changes to improve the item or its performance.
Five firms submitted proposals by the June 28 closing date. The Army's
source selection evaluation board (SSEB) evaluated the proposals,
conducted preaward surveys of the three offerors at issue here, and
arrived at the following evaluation results:
+------------------------------------------------------------------------+
| |MEI |PSI |Valentec |
|----------------------+-------------------------+------------+----------|
|Recent, Relevant Past |Good |Good |Neutral |
|Performance |(Good) |(Good) |(Neutral) |
| (On-Time |(Good) |(Good) |(Neutral) |
|Delivery) | | | |
| (Quality) | | | |
|----------------------+-------------------------+------------+----------|
|Product-to-Process |Excellent |Excellent |Neutral |
|Enhancement Efforts | | | |
|----------------------+-------------------------+------------+----------|
|Technical Capability |Excellent |Excellent |Excellent |
|----------------------+-------------------------+------------+----------|
|Price | | | |
| 100 percent of the|[DELETED] |[DELETED] |[DELETED] |
|requirement |[DELETED] [DELETED] |[DELETED] |[DELETED] |
| 61 percent of | |[DELETED] |[DELETED] |
|the requirement | | | |
| 39 percent of | | | |
|the requirement | | | |
+------------------------------------------------------------------------+
The contracting officer, acting as the source selection authority (SSA),
documented his conclusions regarding the merits of each proposal in a
source selection decision (SSD). The SSA made no distinction among the
proposals under the technical capability factor. Under the recent,
relevant past performance factor, the SSA stated that Valentec's proposal
was rated *neutral* under both subfactors because it had no recent,
relevant contracts within the last 3 years. The SSA made no distinction
between MEI and PSI under the quality subfactor but, under the on-time
delivery subfactor, the SSA stated that MEI's proposal was rated *good,*
but that the firm was delinquent on its current contract for these
cartridges. In the SSA's estimation, MEI's continued delinquency caused a
*serious concern* as to whether it would be able to successfully perform.
SSD at 4. The SSA stated that, since he was the contracting officer on
MEI's current contract for these cartridges, and was *intimately aware* of
all aspects of the delinquent contract and had had many discussions with
MEI about the reasons for the delinquency, there was no need to open
discussions on the matter. Id. Aside from noting PSI's rating of *good*
under the on-time delivery subfactor, the SSD does not mention PSI's
on-time delivery performance. Under the product-to-process enhancement
efforts factor, the SSA stated that MEI and PSI presented examples of
their accomplishments on this element, but Valentec was unable to
demonstrate a product-to-process success because [DELETED]. As a result,
the SSA explained, Valentec's proposal was rated *neutral* under this
factor in accordance with the evaluation plan. The SSA finally noted that
the prices of all of these offerors were determined to be fair and
reasonable.
The SSA decided to make a split award, with the larger portion going to
Valentec and the smaller portion going to PSI. The SSA stated that,
although MEI and PSI received the same adjectival ratings of *good* for
the technical evaluation, MEI's current delinquency caused a *serious lack
of confidence* in the firm's ability to handle another award. Id. at 5.
The SSA further stated that, while Valentec had never produced the item
and had not presented a process-to-product enhancement, the firm's site
survey and its plans to use experienced personnel gave him confidence that
its proposal presented the best value at a low risk. The SSA explained
that two awards would give the government simultaneous deliveries, which
would greatly help the item's critical stock position and lessen the risk
of giving the entire requirement to one source. As a result, the SSA
stated, the government recognized a trade-off cost premium of
approximately [DELETED] percent, including the evaluated option, compared
to the cost of a 100 percent award to the low offeror, Valentec. Based on
the above analysis, the SSA determined that the additional cost for an
award to PSI--as opposed to a 100 percent award to Valentec--was an
acceptable tradeoff for a potential lower risk.
Awards were made on November 20, and, after its debriefing, MEI filed its
protest on December 2 challenging both awards. With regard to the PSI
award, MEI argued that selection of PSI's proposal over its own
lower-priced proposal solely on the basis of a delinquency under MEI's
current contract for these cartridges was neither reasonable nor
consistent with the solicitation's evaluation criteria. Specifically, MEI
argued that the contracting officer knew or should have known that an
August 2002 delinquency on its current contract was caused by the
government, and not MEI, citing contemporaneous exchanges between MEI and
the contracting officer; that it was improper to consider this August 2002
delinquency because it occurred after the closing date for submission of
proposals; and that, even if it was proper to consider this delinquency,
the contracting officer improperly failed to bring this adverse past
performance information to MEI's attention for clarification. MEI also
argued that selection of Valentec's proposal over its own based on
Valentec's lower price was unreasonable and inconsistent with the
solicitation's evaluation criteria. Specifically, MEI argued that since
the technical factors were significantly more important than price, and
since its ratings of *good* and *excellent* under the recent, relevant
past performance and the product-to-process enhancement efforts factors,
respectively, were superior to Valentec's *neutral* ratings on these same
factors, it was unreasonable to select Valentec's proposal over its own.
The Army filed its agency report in response to the protest on January 6,
2003. With regard to MEI's challenge to the PSI award, the Army argued
that the contract delinquency to which the SSD referred began with a
January 2002 delay to first article testing, and continued through to a
second delay to first article testing in August 2002. The Army also
denied any responsibility for either delinquency, citing contemporaneous
exchanges with MEI regarding the causes for the delays. The Army asserted
that it was proper to consider the first delinquency because it occurred
before the closing date, and it was proper to consider the second
delinquency because the information was too close at hand to ignore. The
Army argued that clarifications were not necessary because MEI had the
opportunity to address the first delinquency in its proposal and because
the contracting officer had had exchanges with the firm regarding both
delinquencies. The Army concluded that its selection of PSI's proposal
over MEI's lower-priced proposal was supported because the SSA considered
PSI's performance risk to be lower than that of MEI. With regard to the
Valentec award, the Army argued that MEI's ratings of *good* and
*excellent* under the recent, relevant past performance and the
product-to-process enhancement efforts factors, respectively, were not
superior to Valentec's *neutral* ratings under these same factors because
neutral ratings are to be viewed neither favorably nor unfavorably.
On January 16, MEI filed its comments on the agency report. In rebutting
the agency's position on the issues raised in the protest, MEI argued that
the January 2002 delinquency was insufficiently serious to warrant the
SSA's conclusions about the firm's performance risk, and that the August
2002 delinquency was the fault of the government, not MEI. MEI again
relied upon the details of contemporaneous exchanges, including
correspondence, between the firm and the contracting officer concerning
the causes of both delays. Based upon information in the agency report,
MEI also argued, for the first time, that the Army's evaluation of PSI's
proposal under the on-time delivery subfactor improperly failed to take
into account numerous recent PSI late deliveries under relevant
contracts. MEI stated that, despite the presence of information regarding
late deliveries in PSI's proposal and in the pre-award survey
documentation,[2] neither the evaluation worksheet nor the SSD mentioned
any PSI late deliveries and, as a result, PSI's *good* rating was
unsupported by the record. With regard to the Valentec award, MEI argued
that the agency improperly assigned a *neutral* rating to Valentec's
proposal under the product-to-process enhancement efforts factor because
notations on evaluation worksheets indicated that there was information to
be evaluated.[3]
On January 21, this Office asked the Army to address MEI's allegations
that the Army failed to take into account various recent PSI late
deliveries in evaluating its proposal under the past performance factor;
that the August 2002 delinquency was not the fault of MEI; and that the
Army improperly assigned Valentec's proposal a *neutral* rating under the
product-to-process enhancement efforts factor.
In its January 28 response, the Army argued that PSI's rating of *good*
under the
on-time delivery subfactor was reasonable and consistent with positive
performance information the agency had received from the Navy. This
*positive performance information* was not contemporaneous evidence but
was, instead, several post-protest responses to the Army's post-protest
requests for information for the purpose of defending this protest. The
Army also reiterated its position that it had properly considered both of
MEI's delinquencies and reasonably considered their impact upon MEI's
performance risk, citing again to contemporaneous exchanges between MEI
and the contracting officer. With regard to the Valentec award, the Army
argued that it properly gave Valentec's proposal a neutral rating under
the product-to-process enhancement efforts factor because the factor could
not be evaluated unless an offeror actually had a *prior experience
history 'on same or similar items.'* Army Supplemental Report at 8.
According to the Army, since Valentec does not have relevant past
performance history *'producing the same or similar items, requiring the
same or similar manufacturing processes, skills and abilities' that can be
evaluated, it logically follows that it will also not be able to
demonstrate previous efforts to incorporate process improvements and
initiatives to enhance product or performance on same or similar items.*
Id.
MEI responded to the agency's supplemental report on February 3, arguing
that the contemporaneous record did not support the Army's evaluation of
PSI's on-time delivery record, and that the post-protest explanations
provided by the Army were both inadequate and inconsistent with
information in the record. MEI also challenged the SSA's post-protest
explanations concerning the relative fault for the August 2002
delinquency. As for the Valentec evaluation, MEI argued that, to the
extent the Army's review was limited to a review of *same or similar
items,* Valentec's proposal identified several contracts which Valentec
claimed were for similar items and, as a result, information existed that
should have been considered.
On February 4, GAO notified the parties that a hearing would be necessary
because the contemporaneous evaluation record inadequately documented the
basis for PSI's on-time delivery subfactor rating, and inadequately
documented the basis for the SSA's decision that MEI's delinquency on its
current contract caused him a serious lack of confidence in its ability to
handle another award and his selection of PSI for award over the MEI
proposal for this reason. On February 13, the Army advised this Office
that it would be in the best interests of the government to amend the
solicitation as necessary and to reevaluate proposals.
Based on the agency's proposed corrective action, we dismissed the protest
as academic on February 14. Thereafter, in accordance with our Bid
Protest Regulations, 4 C.F.R. S: 21.8(e), MEI requested that we recommend
reimbursement of its protest costs because the agency had unduly delayed
taking corrective action in the face of its meritorious protest. With
regard to the PSI award, MEI states that it challenged both the agency's
decision to treat its good rating as inferior to PSI's good rating solely
on the basis of the delay under MEI's current contract and the agency's
simultaneous failure to take into account numerous recent late PSI
deliveries, and asserts that a reasonable inquiry into these allegations
would have revealed facts disclosing the absence of a defensible legal
position. With regard to the Valentec award, MEI states that it
challenged the propriety of Valentec's neutral rating under the
product-to-process enhancement factor.
The Army disputes MEI's position that its protest was clearly
meritorious. With regard to the PSI award, the agency maintains that the
record contained significant adverse contract administration information
regarding MEI's performance under its current contract--the
contemporaneous exchanges between MEI and the contracting officer
regarding the delinquencies--that supported the SSA's conclusions
regarding the risk involved in awarding the contract to MEI. The Army
concedes that the record *could have been better documented* to preclude
the need for a hearing on the issue of PSI's past performance, Army
Response to Request for Reimbursement at 3, but states that this
allegation was not clearly meritorious because the Army could have
prevailed after a hearing on the subject. With regard to the Valentec
award, the Army argues that it properly rated Valentec's proposal
*neutral* under the product-to-process enhancement efforts factor because
[DELETED].
Where a procuring agency takes corrective action in response to a protest,
our Office may recommend that the agency reimburse the protester its
protest costs where, based on the circumstances of the case, we determine
that the agency unduly delayed taking corrective action in the face of a
clearly meritorious protest, thereby causing a protester to expend
unnecessary time and resources to make further use of the protest process
in order to obtain relief. Georgia Power Co.; Savannah Elec. and Power
Co.--Costs, B-289211.5, B-289211.6, May 2, 2002, 2002 CPD P: 81 at 5. A
protest is clearly meritorious when a reasonable agency inquiry into the
protest allegations would show facts disclosing the absence of a
defensible legal position. AVIATE L.L.C., B-275058.6, B-275058.7, Apr.
14, 1997, 97-1 CPD P: 162 at 16. For a protest to be clearly meritorious,
the issue involved must not be a close question. J.F. Taylor,
Inc.--Entitlement to Costs, B-266039.3, July 5, 1996, 96-2 CPD P: 5 at 3.
Rather, the record must establish that the agency prejudicially violated a
procurement statute or regulation. Tri-Ark Indus., Inc.--Declaration of
Entitlement, B-274450.2, Oct. 14, 1997, 97-2 CPD P: 101 at 3. In our
view, MEI's protest of both awards was clearly meritorious.
Turning to the PSI award, MEI challenged both the Army's decision to treat
its *good* rating as inferior to PSI's *good* rating solely on the basis
of the delay under its current contract, and the Army's failure to take
into account numerous recently late PSI deliveries.
At the heart of MEI's first challenge was its allegation that the August
2002 delinquency was the fault of the government, and not MEI. In support
of its position, MEI cited contemporaneous written exchanges between the
firm and the contracting officer that explained, in detail, the causes for
the delay.
Despite the fact that the sole reason for the SSA's selection of PSI's
proposal for award over MEI's lower-priced proposal was MEI's delinquency
under its current contract, nothing in the contemporaneous record explains
the basis for the SSA's conclusion that MEI's *current delinquency causes
a serious lack of confidence in [its] ability to handle another award.*
SSD at 5. There is no evidence that the SSA considered the
contemporaneous explanations provided by MEI regarding the cause for this
delay or the January 2002 delay, no evidence that the SSA considered the
question of relative fault despite details surrounding the explanations
for both delays that raises the question, and no evidence that the SSA
considered the impact of either delay to MEI's first article testing on
the procurement as a whole. Despite this inadequate documentation, the
Army proceeded to file a report and a supplemental report defending its
position on this issue. Neither report provided additional
contemporaneous evidence of the SSA's consideration of MEI's delinquency,
and the post-protest explanations provided by the SSA and others did not
resolve the matter.
In MEI's second challenge, raised in its comments, the firm argued that
the Army improperly failed to consider numerous recent PSI late deliveries
in evaluating the firm's proposal under the on-time delivery subfactor.
MEI correctly pointed out that there was no contemporaneous evidence that
information in the record about PSI's late deliveries was considered.
Despite this lack of documentation associated with the evaluation of PSI's
proposal on a subfactor critical to the source selection decision, and
despite contemporaneous information putting PSI's *good* rating into
question, the Army proceed to file a supplemental report defending its
position on this issue. This defense relied upon post-protest information
gathered specifically for the purpose of defending this protest or for the
purpose of implementing our recommendation in a prior protest filed by
MEI, and the information itself was inconsistent with the record and did
not resolve the matter.
In reviewing an agency's evaluation of proposals and source selection
decision, we examine the record to determine whether the agency acted
reasonably and consistent with the stated evaluation factors as well as
applicable statutes and regulations. PRC, Inc., B-274698.2, B-274698.3,
Jan. 23, 1997, 97-1 CPD P: 115 at 4. Implicit in the foregoing is that
the evaluation must be documented in sufficient detail to show that it was
reasonable and bears a rational relationship to the announced evaluation
factors. FAR S:S: 15.305(a); 15.308; Satellite Servs., Inc.,
B-286508, B-286508.2, Jan. 18, 2001, 2001 CPD P: 30 at 7; ACS Gov't
Solutions
Group, Inc., B-282098 et al., June 2, 1999, 99-1 CPD P: 106 at 13. Here,
it is evident from the record that the sole basis for the selection of
PSI's proposal over MEI's lower-priced proposal--the SSA's conclusion that
MEI's delinquency on its current contract caused a serious lack of
confidence in the firm's ability to handle another contract--was
inadequately documented, and that the resulting source selection decision
was not supported by the record. It is also evident from the record that
the *good* rating for PSI's proposal under the on-time delivery subfactor
was inadequately documented, and that the SSA's perception of PSI's low
performance risk was not supported by the record.
In our view, a reasonable agency inquiry into these allegations would have
disclosed the absence of a defensible legal position and, by unduly
delaying corrective action, the agency caused the protester to expend
unnecessary time and resources to make further use of the protest process
to obtain relief. Georgia Power Co.; Savannah Elec. and Power Co.--Costs,
supra, at 6. The Army correctly notes that this Office will consider
post-protest explanations that are credible and consistent with the
contemporaneous documentation in rendering a decision, and that the Army
might have prevailed in the protest as a result of the hearing. See,
e.g., Jason Assocs. Corp., B-278689 et al., Mar. 2, 1998, 98-1 CPD P: 67
at 6-7. Here, however, the Army provided written post-protest information
that was inconsistent with and had little or no nexus to the
contemporaneous record, yet opted to forgo the hearing which might have
permitted it to prevail in the protest. That being the case, the record
before us stands as inadequately documented and insufficiently supportive
of the source selection decision.
Turning to the Valentec award, MEI argued that the Army improperly
assigned Valentec's proposal a *neutral* rating under the
product-to-process enhancement efforts factor because there was, in fact,
information about Valentec that the agency should have considered. The
Army's response to this allegation was to argue that it could not have
assigned any rating but *neutral* unless an offeror actually had a prior
experience history *on same or similar items.* Army's Supplemental Report
at 8. The Army stated that, since Valentec did not have relevant past
performance history *producing the same or similar items, requiring the
same or similar manufacturing processes, skills and abilities' that can be
evaluated, it logically follows that it will also not be able to
demonstrate previous efforts to incorporate process improvements and
initiatives to enhance product or performance on same or similar items.*
Id.
This argument relies upon the quoted RFP definition of the term relevant,
which concerns the recent, relevant past performance factor. However,
MEI's allegation concerns the product-to-process enhancement efforts
factor. It is the solicitation's definition of the latter factor that is
controlling, and a plain reading of that definition shows that the Army's
view that a proposal could not be evaluated unless the offeror had a prior
history producing the *same or similar items* as those required here was
unreasonable.
As noted earlier, section M-1 of the RFP defined the product-to-process
enhancement efforts factor as follows:
Information provided by the offeror that demonstrates contractor's efforts
to incorporate process improvements and initiatives to enhance product or
performance on same or similar items. Information provided by the offeror
on internal programs or innovations initiated by the offeror, based on
production experience or knowledge or product-to-process
inter-relationships, that resulted in recommended design or production
process changes to improve the item or its performance.
The solicitation breaks this factor into two components. The first
component requires the Army to consider information provided by the
offeror that demonstrates its efforts to incorporate process improvements
or initiatives to enhance product or performance *on same or similar
items.* However, the second component of the definition requires the
Army to consider information provided by the offeror on *internal programs
or innovations initiated by the offeror, based on production experience or
knowledge of product-to-process inter-relationships, that resulted in
recommended design or production process changes to improve the item or
its performance.* The second part of the definition is not limited to
performance on the *same or similar items* as those required here, but
extends to the production of any and all items.
Our view is confirmed by the SSA's source selection decision document,
wherein the SSA states that the product-to-process enhancement efforts
factor is *an element derived from the Journey to Excellence initiative,
where the contractor could demonstrate his efforts with any item that he
had worked to improve, i.e., the fruits of his efforts to improve his
process.* SSDD at 4 (emphasis added). In addition, the evaluation plan's
guidance to the adjectival ratings to be assigned under this factor is
also couched as an either/or proposition. The *excellent* rating, for
example, was reserved for offerors that had demonstrated *a thorough
understanding of the product-to-process interrelationship for same or
similar items and/or has initiated product enhancement programs into his
production processes.* Evaluation Plan at 7. *Neutral* ratings were to
be assigned in cases where the *offeror's lack of performance indicates an
unknown performance risk.* Id.
In the case at hand, as MEI pointed out in its comments, Valentec does
have a record of past performance with production contracts. The firm's
proposal lists five contracts that it refers to as *relevant* to the
solicitation, and states that at least two of these contracts are relevant
because they concern production contracts *for essentially the same
efforts as that required here.* Valentec Proposal, Past Performance
Information, at 1. Whether or not these contracts are for *similar
items,* the fact that the firm has past performance on these production
contracts at all obligated the Army to review its proposal under this
factor for a rating other than *neutral.*
It is fundamental that offerors be advised of the basis upon which their
proposals will be evaluated and that agencies evaluate in accordance with
the stated evaluation criteria. Competition in Contracting Act of 1984,
10 U.S.C. S: 2305(a)(2)(A), (b)(1) (2000); FAR S:S: 15.304(d), 15.305(a).
Here, the record establishes that the agency's evaluation of Valentec's
proposal under the products-to-process enhancement efforts factor did not
comport with this standard. In our view, a reasonable agency inquiry into
the allegation would have disclosed the absence of a defensible legal
position, and we conclude that MEI's protest in this regard was clearly
meritorious.[4]
We recommend that the protester be reimbursed the reasonable costs of
filing and pursuing its protest,[5] including those incurred here, i.e.,
requesting a recommendation for costs. Georgia Power Co.; Savannah Elec.
and Power Co.--Costs, supra, at 12. The protester should submit its claim
for costs, detailing and certifying the time expended and costs incurred,
directly to the Army within 60 days of receipt of this decision. 4 C.F.R.
S: 21.8(f)(1).
Anthony H. Gamboa
General Counsel
------------------------
[1] The RFP was silent as to the relative importance of the small business
utilization factor, which was not at issue in the protest.
[2] MEI also argued that the contracting officer knew or should have known
of additional PSI late deliveries by virtue of a then-ongoing GAO protest
involving the same parties in another OSC procurement. See Martin Elect.,
Inc., B-290846.3, Dec. 23, 2002, 2002 CPD P: 6. We do not agree with
the Army that MEI was required to raise this argument when it filed its
protest because, at that time, the firm's counsel had access to PSI's past
performance history pursuant to a GAO protective order issued in the prior
protest. MEI had no way of knowing the basis for the Army's evaluation of
PSI's proposal in this procurement until it received the agency report.
[3] MEI's argument that the Army could not use a *neutral* rating for the
product-to-process enhancement efforts factor because such a rating is
reserved for a past performance factor is untimely. MEI knew when it
filed its protest that Valentec had received this *neutral* rating, but
did not raise this argument until it filed its comments. Protests not
based upon alleged solicitation improprieties must be filed not later than
10 days after the basis of protest is known or should have been known. 4
C.F.R. S: 21.2(a)(2) (2003).
[4] An RFP amendment issued in conjunction with the agency's corrective
action indicates that the product-to-process enhancement efforts factor
has been converted to a past performance factor subfactor, and has been
redefined to limit consideration to *similar items.* RFP amend. 3 at 2-4.
[5] The agency requests that our recommendation for reimbursement of MEI's
protest costs be limited to those specific issues found clearly
meritorious because, in the agency's view, the protest issues pertaining
to each separate contract award in this case are *so clearly severable as
to constitute separate protests.* Army Response to Request for
Recommendation for Reimbursement at 5. In general, we consider a
prevailing protester entitled to costs incurred with respect to all issues
pursued, not merely those upon which it prevails. The Real Estate
Ctr.--Costs, B-274081.7,
Mar. 30, 1998, 98-1 CPD P: 105 at 3. Where a protester prevails on one of
a number of related grounds of protest, the allocation of costs between
winning and losing issues is generally unwarranted, and costs are not
limited to the effort spent on the issue upon which the protester
prevails. Id. We will limit a successful protester's recovery of protest
costs when a part of the costs is allocable to a losing protest issue that
is so clearly severable as to constitute a separate protest. Price
Waterhouse--Costs,
B-254492.3, July 20, 1995, 95-2 CPD P: 38 at 3. Here, we have concluded
that MEI raised a clearly meritorious protest allegation with regard to
each award, and these allegations are so intertwined with the other issues
in MEI's pleadings that there is no basis to limit MEI's recovery of
costs. Minolta Corp.--Costs, B-285010.2, Sept. 26, 2000, 2000 CPD P: 156
at 4 n.2.