TITLE:  Gamut Electronics, LLC, B-292347; B-292347.2, August 7, 2003
BNUMBER:  B-292347; B-292347.2
DATE:  August 7, 2003
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Gamut Electronics, LLC, B-292347; B-292347.2, August 7, 2003

   Decision
    
    
Matter of:    Gamut Electronics, LLC
    
File:             B-292347; B-292347.2
    
Date:              August 7, 2003
    
John Hibbs for the protester.
Lt. Col. Thomas L. Hong, Department of the Army, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest of solicitation terms more than 4 months after closing date,
and after protester submitted proposal and participated in product
demonstration, is untimely and not for review.
    
2.  Protest that agency improperly rejected protester's product as
unsuitable is denied where agency evaluation was conducted in accordance
with stated evaluation criteria and protester does not allege any specific
errors in evaluation.
DECISION
    
Gamut Electronics, LLC protests the rejection of its proposal under
solicitation No. DABJ47-03-R-ONDCP, issued by the Department of the Army
for state-of-the-art counterdrug equipment.  Gamut challenges both the
terms of the solicitation and the rejection of its proposal.
    

   We deny the protest.
    
The Army, acting as technical agency for the Office of National Drug
Control Policy (ONDCP), Counterdrug Technology Assessment Center (CTAC),
issued the solicitation, a broad agency announcement (BAA), as a *sources
sought* notice in FedBizOpps to obtain proposals of state-of-the-art
counterdrug equipment that CTAC would provide to state and local law
enforcement agencies under the Technology Transfer Program (TTP).[1]  The
procurement was conducted in a phased manner.  In Phase I, offerors were
to submit proposals for a single product meeting the following initial
qualifying criteria:
    
(1)  product shall have a specific counterdrug application such as, but
not limited to:  Miniature digital covert audio/video surveillance;
portable narcotic detection systems; advanced miniature audio or
video-based body-wire devices; command, control, communication, computer,
intelligence systems (C4I); covert vehicle tracking system, case
management system, data-sharing and analysis systems,
telephone/fax/internet intercept systems; and data mining or advanced
internet/database/unstructured data search engines.  (2) product must have
a verifiable and established performance record with U.S. law enforcement
agencies and (3) the product must be packaged as a fully integrated
turn-key system and require no further development or enhancement effort.
Solicitation at 2.  Products were required to meet all three criteria in
order to be considered for further evaluation under Phase II. 
    
Candidates selected for Phase II were to demonstrate and brief their
proposed products to a panel of law enforcement personnel, who would
evaluate the proposal for applicability and viability for the TTP.  This
Phase II evaluation was to be based on the following criteria, listed in
descending order of importance:  overall technical merit/feasibility of
proposed equipment; potential contribution, relevance, and impact to the
agency's mission and support of the TTP; and cost and schedule.  The
agency reserved the right to select all, some, or none of the responses to
the solicitation for demonstration or contract award.  Under Phase III,
demonstration results were to be analyzed, recommendations of technologies
for inclusion in the TTP were to be made, and contract(s) were to be
awarded as applicable.
    
Gamut submitted a proposal for its *Code Five System,* a wireless
remote-controlled surveillance system.  Gamut's proposal passed the Phase
I evaluation and the firm was invited to demonstrate its product in Phase
II.  Based on this demonstration, the agency determined that Gamut's
product did not meet the TTP's needs.  After receiving notice of its
proposal's rejection, Gamut filed this protest challenging the terms of
the solicitation and the evaluation of its product. 
    
THE SOLICITATION
    
Gamut asserts that the solicitation was actually an improper sole-source,
indefinite-delivery/indefinite-quantity procurement.  In Gamut's view, the
agency could only use a solicitation like this one to conduct market
research, and then was required to issue a request for proposals (RFP) or
request for quotations (RFQ), based on full and open competition,
identifying the specific products desired by the CTAC.  Gamut also
identifies a number of alleged flaws in the solicitation based on Federal
Acquisition Regulation (FAR) S: 12.205.  For example, while market
research includes a review of product literature, the solicitation here
prohibited submission of product literature.  FAR S: 12.205(a). 
Similarly, while FAR S: 12.205(b) allows the proposal of more than one
item meeting the agency's needs, the solicitation here permitted the
proposal of only one product.  The agency responds that the solicitation
met full and open competition requirements because it was a BAA, conducted
in accordance with FAR part 35, but Gamut asserts that the agency merely
used the BAA procedures to circumvent the requirement for full and open
competition.  
    
Under our Bid Protest Regulations, protests of alleged improprieties
apparent on the face of the solicitation must be filed no later than the
closing time for receipt of proposals.  4 C.F.R. S: 21.2(a)(1) (2003). 
Gamut's challenges to the manner in which the agency solicited this
requirement concern alleged solicitation improprieties; that is, these
protest arguments are based on information that was available from the
solicitation itself.  For example, to the extent that Gamut believed it
was improper for the agency to conduct a competitive procurement based
solely on the FedBizOpps notice, without issuing an RFP or RFQ, the firm
should have been aware of this from the BAA, which explained how the
agency intended to proceed.  Because Gamut did not challenge the
solicitation until some 3 months after the closing time, and after it
participated in two of the three phases, this aspect of its protest is
untimely.  Demusz Mfg. Co., Inc., B‑290575, Aug. 5, 2002, 2002 CPD
P: 141 at 3.
    
Gamut maintains that its protest was timely because it did not notice the
improprieties prior to its proposal's rejection, which then prompted it to
perform a *detailed analysis of the solicitation,* and because it was
unaware that the agency considered the solicitation a BAA until after
Gamut had filed its original protest.  Response to Motion to Dismiss, June
6, 2003; Gamut Letter, June 11, 2003 at 1. 
    
This argument is without merit.  The solicitation plainly laid out all
aspects of the requirement that Gamut now protests:  the phased nature of
the procurement, the evaluation criteria, and the agency's significant
discretion in selecting all, some, or none of the proposals for
demonstration or awards.  Thus, Gamut was, or should have been, fully
aware of all the matters it now challenges, and could not delay protesting
until it completed its *detailed analysis.*  While Gamut may not have been
aware that the solicitation was a BAA, the essence of its protest--that
the agency's substantive approach to the procurement was flawed--was not
dependent upon this information, and the fact that the protest
incorporated this information therefore did not render it timely.[2] 
    
Gamut asserts that we should consider its untimely arguments under the
significant issue exception to our timeliness requirements.  4 C.F.R.
S: 21.2(c).  Under this exception, we may consider a protest
notwithstanding its untimeliness when, in our judgment, doing so would be
in the interest of the procurement system.  ABB Lummus Crest Inc.,
B‑244440, Sept. 16, 1991, 91-2 CPD P: 252 at 4.  The exception is
limited to protests that raise issues of widespread interest to the
procurement community, and that have not been considered on the merits in
a previous decision.  Id.  We find no basis for applying the exception
here since, while the protest is of interest to Gamut, there is no reason
to believe that the issues raised would be of widespread interest to the
procurement community.  DSDJ, Inc., B‑288438 et al., Oct. 24, 2001,
2002 CPD P: 50 at 3. 
    
TECHNICAL EVALUATION
    
Gamut asserts that the evaluation of its product as not meeting the
agency's needs was not reasonable, noting that its product is made up of
commercial, off‑the-shelf components, and is *the most widely used
wireless remote controlled surveillance camera in California law
enforcement.*  Comments at 2. 
    
In reviewing a protest of an agency's proposal evaluation, it is not our
role to reevaluate proposals.  Rather, we will consider only whether the
evaluation was reasonable and consistent with the terms of the
solicitation and applicable statutes and regulations.  CWIS, LLC,
B‑287521, July 2, 2001, 2001 CPD P: 119 at 2.
    
The evaluation here was reasonable.  As indicated above, the determination
of whether a product would be recommended for inclusion in the TTP as part
of Phase III depended primarily upon the Phase II evaluation of technical
merit, potential contribution, and cost schedule.  Ten of the 15
evaluators concluded that Gamut's product was *marginal* and 5 concluded
that it was *unacceptable.*  Agency Report (AR), Tab 4.  Under the overall
technical merit/feasibility factor, Gamut's product was found to have some
surveillance application, but limited use, since it was configured to fit
in a large vehicle and not considered a covert surveillance system.  AR,
Tab 1.  With regard to the potential contribution, relevance, and impact
factor, the contracting officer found that the product had quality,
potential, and relevance, but that it had many limitations due to its size
and limited concealment.  Id.  As for the cost/schedule factor, the
contracting officer observed that the TTP generally conducts classes with
more than 30 students and has a maximum lead time of 4 months.  Because
Gamut stated it would require a 60-day lead time and could only produce
one unit per week, the contracting officer concluded that Gamut would
require 9 months to provide enough units to meet the agency's class size
requirements, so that the proposal did not meet the agency's needs.  Id. 
    
Gamut *disagrees* with the contracting officer's negative comments, but
asserts that it would be of *little benefit in arguing the perceptions of
the contracting officer.*  Comments at 2.  Gamut's disagreement with the
agency's judgment, alone, is not sufficient to render the evaluation
unreasonable.  UNICCO Gov't Servs., Inc., B‑277658, Nov. 7, 1997,
97-2 CPD P: 134 at 7.  With regard to the agency's doubts about Gamut's
ability to timely furnish its products, the protester states that *[t]here
would be no problem providing training, warranty repair, fast delivery,
expanding the workforce, etc.*  Comments at 2.  However, Gamut did not
make this representation at the time of its product demonstration; when
questioned about delivery, Gamut's representative did not state that the
firm could or would improve its offered time schedule.  AR, Tab 1. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] CTAC, which serves as the central counter-drug technology research and
development organization in the U.S. government, and the TTP were
established under the Office of National Drug Control Policy
Reauthorization Act of 1998.  21 U.S.C. S:S: 1701 et seq. (2000).  
[2] Expressed differently, Gamut was not prejudiced by any alleged
violation of the requirements for a BAA.  See McDonald-Bradley, B-270126,
Feb. 8, 1996, 96-1 CPD P: 54 at 3; see Statistica, Inc. v. Christopher,
102 F.3d 1577, 1581 (Fed. Cir. 1996).  In this regard, Gamut does not
argue, and there is no reason to assume, that Gamut would have prepared
its proposal differently had it been aware that the agency considered this
a BAA-type procurement, or if it had not deviated from the BAA
requirements as alleged.