TITLE:  Americom Government Services, Inc., B-292242, August 1, 2003
BNUMBER:  B-292242
DATE:  August 1, 2003
**********************************************************************
Americom Government Services, Inc., B-292242, August 1, 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:   Americom Government Services, Inc.
    
File:            B-292242
    
Date:           August 1, 2003
    
David W. Burgett, Esq., Peter A. Rohrbach, Esq., Karis A. Hastings, Esq.,
and Gary J. Campbell, Esq., Hogan & Hartson, and Nancy J. Eskenazi, Esq.,
and Mara L. Yoelson, Esq., SES Americom Inc., for the protester.
Stephanie A. Kreis, Esq., Defense Information Systems Agency, for the
agency.
Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency reasonably eliminated from competitive range proposal that failed
to comply with material technical requirements in solicitation; contrary
to protester*s contention, agency was not required to augment the proposal
by considering information contained in competitors* proposals, or to
conduct discussions to enable offeror to cure evaluated deficiencies.
DECISION
    
Americom Government Services, Inc. protests the exclusion of its proposal
from the competitive range under request for proposals (RFP) No.
DCA500-03-R-0001, issued by the Defense Information Technology Contracting
Organization (DITCO) for the acquisition of a space segment for the
Alaskan National Airspace System Interfacility Communications System
(ANICS), a Federal Aviation Administration (FAA) backbone communications
system consisting of satellite earth stations, transmission channels, and
services for communications in Alaska and Seattle, Washington. Americom
contends that one of the proposal alternatives that it offered easily
could have been made fully compliant, and was improperly excluded from the
competitive range on the basis of technical noncompliance.
    

   We deny the protest.
    
BACKGROUND
    
The RFP, issued on February 14, 2003, as a commercial acquisition under
Federal Acquisition Regulation (FAR) part 12, sought fixed-priced
proposals for a requirements contract for a base period of 2 years with 8
1-year options to supply the satellite space segment portion of the ANICS
network.  The RFP provided that award would be made to the responsible,
technically acceptable offeror with an acceptable/neutral record of past
performance whose proposal represented the lowest discounted life cycle
cost to the government, with technical capability rated on a pass/fail
basis.  The solicitation included the clause at FAR S: 52.212‑1(e)
stating that the government intended to evaluate offers and award a
contract without discussions.
    
The solicitation specified a number of mandatory technical requirements,
including, among others, that:  the contractor provide two satellites that
are at least 4 degrees apart in orbit in order to mitigate the effects of
sun outages and radio frequency interference; satellites have sufficient
signal strength to serve Seattle, Washington and all of the state of
Alaska; all satellite transponders be non-preemptible; and the contractor
provide satellite transponder space during the life of the contract,
including a restoral plan for failure of any transponder that describes
restoral for any outages that may occur.  The RFP also required a
satellite space segment plan which includes, for leased space segments for
resale to the government, a detailed description of the lease plan between
the contractor and satellite vendor.  The RFP directed offerors to submit
a technical response sufficiently detailed to evaluate compliance with the
solicitation requirements, specifically including a satellite space
segment plan and a restoral plan.  The extended closing date for proposal
submission was March 26, 2003.
    
The agency received 19 proposals submitted by 12 offerors by the closing
date, including Americom*s proposal, which contained two alternatives.  As
a result of the initial evaluation, 14 proposals from seven offerors,
including the two alternatives submitted by Americom, were determined to
be technically unacceptable for failure to comply with mandatory
solicitation requirements and were eliminated from the competitive range
because correction would require substantial revision and essentially the
submission of new proposals.  AR at 5. [2]   A telephonic debriefing was
provided to Americom on April 21.  Thereafter, Americom filed this protest
with our Office on April 29, alleging that one of its two proposal
alternatives was improperly evaluated as technically unacceptable and
unreasonably eliminated from the competitive range; in Americom*s view the
proposal could *easily* have been rendered technically compliant if the
agency had considered relevant information in competitors* proposals for a
similar solution, and had provided Americom an opportunity to cure other
evaluated deficiencies through either communications or discussions. 
Protester*s Comments at 23.
    
AMERICOM*S PROPOSAL
    
Americom proposed to provide space segment capacity on the AMC-8
satellite, and eventually to provide capacity on AMC-13 as the required
second satellite.  Because AMC-13 has not been launched and Americom
estimated that it would not be available for approximately 12 months,
Americom*s proposal called for a transition period during which it offered
two proposal alternatives, one of which was to provide capacity on
Telstar-7 (as a leased segment), and the other was to provide capacity on
AMC-7.  Protest at 3.  While the parties have argued at length over which
of those two technical transition approaches constituted Americom*s
primary proposal, and which was intended as an alternate proposal, the
answer to this question does not affect the resolution of the protest. 
Americom concedes that its proposal to use AMC-7 during transition is
noncompliant with the material solicitation requirement for 4 degrees of
separation between the two proposed satellites, and explicitly states that
it does not challenge the agency*s determination to exclude this proposal
from the competitive range as technically unacceptable.  Protester*s
Comments at 1, n.1.  The relevant question is whether the agency
reasonably evaluated Americom*s proposal of Telstar-7 as a transition as
technically noncompliant, and reasonably excluded the proposal from the
competitive range on that basis, irrespective of whether this proposal was
intended by Americom as primary or as an alternate.
    
EXCLUSION FROM THE COMPETITIVE RANGE
    
Contracting agencies are not required to retain a proposal in a
competitive range where the proposal is not among the most highly rated or
where the agency otherwise reasonably concludes that the proposal has no
realistic prospect of award.  FAR S: 15.306(c)(1); SDS Petroleum Prods.,
Inc., B-280430, Sept. 1, 1998, 98-2 CPD P: 59 at 5-6.  Where a proposal is
technically unacceptable as submitted and would require major revisions to
become acceptable, exclusion from the competitive range is generally
permissible.  CMC & Maint., Inc., B-290152, June 24, 2002, 2002 CPD P: 107
at 2.  Proposals with significant informational deficiencies may be
excluded, whether the deficiencies are attributable to either omitted or
merely inadequate information addressing fundamental factors.  American
Med. Depot, B-285060 et al., July 12, 2000, 2002 CPD P: 7 at 6-7.  In
reviewing an agency*s decision to eliminate a proposal from the
competitive range, we will not evaluate the proposal anew, but rather,
will examine the agency*s evaluation to ensure it was reasonable and in
accord with the provisions of the solicitation, and in this regard, a
protester*s mere disagreement with an agency*s evaluation does not
establish that the evaluation was unreasonable.  CMC & Maint., Inc.,
supra. 
    
Here, as discussed below, we have reviewed the record and find no basis to
question the reasonableness of the agency*s determination to exclude
Americom*s Telstar-7 proposal from the competitive range.
    
Americom*s protest initially characterized its proposal as one which
consisted of a fully compliant primary proposal, along with a supplemental
alternative proposal which *did not meet one of the specifications for the
project, but offered other benefits to the government that [Americom]
believed warranted DITCO*s evaluation.*  Protest at 1.  The agency found
both alternatives technically unacceptable and in need of major revision
and excluded both from the competitive range on that basis, as documented
in a finding that summarizes the evaluated areas of technical
noncompliance for both proposals.  The listed bases for concluding that
Americom*s proposals failed to satisfy the technical requirements are: 
failure to meet the requirement for 4 degrees of separation; insufficient
signal strength; proposal of a preemptible transponder; conflicting data
about satellites proposed; restoral plan based on unlaunched satellite;
pricing subject to availability; and unlaunched satellite to replace a
primary or alternate satellite.  AR, Tab 8, Competitive Range
Determination, at 1.
    
As noted above, the finding that the proposed satellites failed to meet
the requirement for 4 degrees of separation provides the uncontested basis
for excluding Americom*s AMC-8 alternative as technically unacceptable. 
With respect to the Telstar-7 alternative, the applicable areas of
technical noncompliance included that:  a proposed transponder was
preemptible; conflicting and insufficient satellite data was provided;
Americom had failed to provide the required space segment plan; there was
insufficient satellite signal strength; the proposal was based on an
unlaunched satellite; and pricing was subject to availability.
    
While Americom asserts that the Telstar-7 alternative is fully compliant,
it also actually concedes that the proposal contains certain of the
enumerated deficiencies.  Thus, for example, Americom states that it
*proposed a fixed price, but included in the proposal standard language
regarding capacity being subject to availability [and] is prepared to
remove this language from the proposal, and would have done so if DITCO
had inquired.*  Protest at 9.  With respect to the agency*s concern about
Americom*s proposal of an unlaunched satellite, Americom simply asserts
that *[t]he [agency*s] conjecture that AMC-13 might never launch is
far-fetched, and one to which [Americom] could have responded in
discussions with DITCO.  Surely a replacement capacity on an existing or
new satellite would be established in the several years remaining before
the retirement of Telstar-7.*  Protester*s Comments at 7.  Similarly,
Americom*s response to the agency*s conclusion that Telstar-7 provided
insufficient signal strength essentially concedes that Americom*s proposal
fails to address this issue.  In this regard, Americom notes that *in
certain instances [Americom*s] proposal devoted more words and detail to
its second [technically unacceptable AMC-8] alternative, which it
mistakenly believed would be the most attractive to DITCO.*  Protester*s
Supplemental Comments, July 1, 2003, at 3.  Americom argues that
information regarding Telstar-7 signal strength was available in other
proposals, some of which also proposed Telstar-7.  Protester*s Comments
at 12.  With respect to the agency*s determination that Americom had
failed to provide the required space segment plan for Telstar-7,
Americom*s response is that *[t]o the extent that DITCO requires
additional information regarding Telstar-7*e.g. [Americom*s] lease with
Loral Skynet, the monitoring procedures, and the restoral plan*it is
information that would easily be provided during discussions.* 
Protester*s Comments at 9.  In our view, each of these conceded technical
deficiencies is material, and any one is sufficient to warrant a
determination that Americom*s Telstar-7 proposal is technically
unacceptable, and provides a reasonable basis to eliminate the proposal
from the competitive range.
    
The real thrust of Americom*s protest is that the agency was required to
either permit Americom to provide additional information through
clarifications during communications, or was required to conduct
discussions to permit Americom to cure the deficiencies, and that missing
required information was readily available from the other proposals, and
therefore should have been considered in conjunction with the evaluation
of Americom*s proposal.  We disagree.
    
By placing language in its proposal which stated that providing the
required capacity was subject to availability, Americom made both its
technical offer and its fixed pricing contingent, in response to a
solicitation which required fixed prices for the specific proposed
technical solution.  This is an impermissible deviation from a material
RFP term that renders the proposal unacceptable and ineligible to form the
basis for award.  SWR, Inc., B-284075, B-284075.2, Feb. 16, 2000, 2000 CPD
P: 43 at 6‑7;  Beckman Coulter, B‑281030, B-281030.2, Dec. 21,
1998, 99-1 CPD P: 9 at 6.  Americom*s protest characterization of this
contingency as standard language that it was willing to remove from its
proposal is without consequence or legal effect.  This impermissible
contingency rendered Americom*s proposal technically unacceptable and
properly subject to elimination from the competitive range; an agency is
under no obligation to conduct discussions with an offer to permit it to
cure the noncompliance which provided the basis for the proposal*s
exclusion.  SOS Interpreting, Ltd., B-287505,  June 12, 2001, 2001 CPD P:
104 at 12.
    
As noted above, Americom explains that its failure to provide material
information about Telstar-7 that the RFP explicitly required in order to
establish technical acceptability resulted in part from its focus on its
alternative offer of AMC-8.  In addition to asserting that these
deficiencies could have been resolved through discussions which, as
explained above, the agency is not required to conduct in these
circumstances, Americom provides two rationales for how these perceived
deficiencies should have been addressed by the agency.  Americom*s first
argument is that FAR S: 15.306(b) requires the contracting officer to
communicate with offerors being considered for the competitive range with
respect to these kinds of matters before eliminating the proposal. 
Protest at 8.  In fact, the only requirement for the conduct of such
communications pertains to offerors whose past performance information is
the determining factor preventing their proposals from being placed within
the competitive range.  FAR S: 15.306(b)(1)(i).  The only other offerors
with whom such communications *[m]ay . . . be held [are offerors] whose
exclusion from, or inclusion in, the competitive range is uncertain.*  FAR
S: 15.306(b)(1)(ii).  First, this language clearly places the decision to
hold such communications in the discretion of the contracting officer, and
is not a requirement.  More important, *[s]uch communications shall not be
used to cure proposal deficiencies or material omissions, materially alter
the technical or cost elements of the proposal, and/or otherwise revise
the proposal.*  FAR S: 15.306(b)(2).  The agency could not properly have
conducted communications here to permit Americom to cure its proposal
deficiencies, all of which fall within the proscribed areas.
    
Americom*s alternative argument is that other offerors proposed Telstar-7,
and because the relevant necessary information was contained in those
proposals, the agency was required to apply that information to Americom*s
proposal.  Protester*s Comments at 8-9.  In fact, the case cited by
Americom as authority for this proposition requires only that a
contracting officer not simply ignore *personally known information about
an offeror*s prior experience merely because it was not mentioned in the
proposal.*  Safeguard Maint. Corp., B-260983.3, Oct. 13, 1995, 96-2 CPD P:
116 at 12.  This holding with respect to an offeror*s past performance
does not provide any basis to require an agency to transfuse material
information contained in one proposal into the evaluation of a
competitor*s proposal.
    
Americom also asserts that the exclusion of its proposal is improper
because DITCO included other proposals for the same technical solution,
and then held disparate discussions with those offerors regarding the
deficiencies.  Protester*s Comments at 7.  This argument mischaracterizes
proposals as the same as Americom*s because they included Telstar-7. 
While other offerors proposed Telstar-7 in conjunction with AMC-13, the
record establishes that their proposals contained substantial required
information that Americom*s proposal omitted, including the identification
of restoral satellites for Telstar-7, and that those proposals did not
include the same extent of other evaluated deficiencies contained in
Americom*s proposal.  Thus, they were not identical, nor even broadly
comparable, and there is no reason to conclude that disparate discussions
were conducted.
    
On this record, there is simply no basis to conclude that the agency was
legally required to find that Americom's proposal was among the most
highly rated or that the proposal had any realistic chance of being
selected for award.  Americom*s Telstar-7 proposal contained numerous
informational deficiencies and other instances of material technical
noncompliance which provided a reasonable basis for the agency to exclude
the proposal from the competitive range, and the agency was not obligated
to permit Americom to cure these deficiencies through communications or
discussions, or by transfusing information from other competing proposals.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] The agency explains that the ANICS network, the FAA*s primary
communications network in these areas, is used for almost all of FAA*s
operational capabilities including those associated with air traffic
control, and that its reliability is critical to air traffic safety
throughout the area.  The FAA owns, operates and maintains the ANICS
network and only the space segment portion of the network that is the
subject of this procurement is commercially leased.  Agency Report (AR) at
2. 
[2] In making the competitive range determination, the agency concluded
that the proposed prices were sufficiently close to each other that the
relative pricing did not have an impact.  AR, Tab 8, Competitive Range
Determination, at 4.  Americom does not question this assessment. 
Subsequently, on April 18, following evaluation of responses to discussion
questions, a second competitive range determination was made, as a result
of which one other proposal was eliminated from the competitive range.  AR
at 6.  The remaining four offerors were asked to submit final proposal
revisions by April 23, 2003.  Id.