TITLE: Continental RPVs, B-292768.2; B-292768.3, December 11, 2003
BNUMBER: B-292768.2; B-292768.3
DATE: December 11, 2003
**********************************************************************
Continental RPVs, B-292768.2; B-292768.3, December 11, 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: Continental RPVs
File: B-292768.2; B-292768.3
Date: December 11, 2003
Richard B. Oliver, Esq., and Gregory M. Murphy, Esq., McKenna Long &
Aldridge, for the protester.
Capt. Tami L. Dillahunt and Mary M. Townsend, Esq., Army Materiel Command,
for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency unreasonably evaluated the offerors* technical
proposals under a solicitation for a remotely piloted vehicle target
(RPVT) system and services is denied where the record shows that the
agency*s evaluation of proposals was reasonable and consistent with the
stated evaluation criteria, and the protester*s contentions represent only
its disagreement with the agency*s evaluation.
2. Protest that contracting agency improperly relaxed solicitation*s
technical requirement that offerors be able to perform eight RPVT
operations concurrently by allowing the awardee to propose to support only
seven concurrent RPVT operations is denied where the agency reasonably
determined that the awardee*s proposal met the solicitation requirement.
3. Agency*s evaluation of the offerors* past performance, and the source
selection decision based upon that evaluation, were not reasonable where
the agency evaluated the protester and awardee as each being of low risk
under the performance evaluation criterion without the record containing
any basis upon which the agency could reasonably have determined that the
awardee*s past performance was, in accordance with the terms of the
solicitation, the *same or similar* to the solicitation requirements for
which the protester was the incumbent contractor.
DECISION
Continental RPVs protests the award of a contract to Griffon Aerospace,
Inc. under request for proposals (RFP) No. DAAH01-02-R-0158, issued by the
Army Aviation and Missile Command (AMCOM), Department of the Army, for the
acquisition of an aerial remotely piloted vehicle target (RPVT) system and
services. Continental argues that AMCOM*s evaluation of the proposals,
including the agency*s evaluation of Griffon*s past performance, was
unreasonable and that the resulting award decision was improper.
We deny the protests in part and sustain them in part.
RPVTs, essentially radio-controlled, sub-scale aerial targets, are a means
by which the Army and other United States military services provide
training to short range air defense units in countering airborne threats
at a reasonable cost; specifically, RPVTs permit live fire engagements by
forces equipped with various missile and gun weapons systems. Statement
of Work (SOW) S: 1.1. While the Army has procured sub-scale aerial
targets for many years, the requirements here were significantly expanded
beyond those of previous procurements, including newly defined performance
parameters that necessitated the redesign of the RPVT target aircraft.
Contracting Officer*s Statement at 2. In addition to the design and
production of an estimated 400 RPVTs annually, the SOW also required the
successful offeror to provide extensive operational support services
(e.g., flight operations, maintenance services, equipment security) and
engineering services for the RPVT system.
The RFP, issued on October 31, 2002, contemplated the award of a
fixed-price contract (with some cost reimbursement items) for a base year
with four 1-year options. The solicitation identified the following
evaluation factors and subfactors:
+------------------------------------------------------------------------+
|1. Technical |
|------------------------------------------------------------------------|
| |A. Design Approach |
| |-------------------------------------------------------|
| |B. Production Approach |
| |-------------------------------------------------------|
| |C. Engineering Services |
| |-------------------------------------------------------|
| |D. Resources, Personnel Skills and Staffing |
|------------------------------------------------------------------------|
|2. Operational |
|------------------------------------------------------------------------|
| |A. Operational Approach |
| |-------------------------------------------------------|
| |B. Equipment Resourcing |
| |-------------------------------------------------------|
| |C. Surge (Premium Hour) Operations |
| |-------------------------------------------------------|
| |D. Resources, Personnel Skills and Staffing |
|------------------------------------------------------------------------|
|3. Management |
|------------------------------------------------------------------------|
| |A. Organization |
| |-------------------------------------------------------|
| |B. Resources |
| |-------------------------------------------------------|
| |C. Personnel |
|------------------------------------------------------------------------|
|4. Past Performance |
|------------------------------------------------------------------------|
|5. Price |
+------------------------------------------------------------------------+
The RFP established that the technical, operational, past performance, and
price factors were of equal importance, and that the management factor was
significantly less important than the other factors.[1] The solicitation
also stated the relative importance of the subfactors within each
evaluation factor. Additionally, the RFP informed offerors that
*[i]nherent in the government*s evaluation will be a consideration of
potential risks, i.e., the risk of delivering technically acceptable
equipment, meeting operation requirements, and satisfying other
contractual requirements given the proposed approach. . . . Each [factor]
shall incorporate consideration of risk in the evaluation.* RFP S:
M-2.b. Award was to be made to the responsible offeror whose proposal was
determined to be most advantageous, or *best value,* to the government,
all factors considered. RFP S: M-2.a.
Four offerors, including Continental and Griffon, submitted proposals by
the March 5, 2003 closing date. An Army technical evaluation team (TET)
evaluated offerors* proposals under the technical, operational, and
management factors using an adjectival rating system: outstanding/very
low risk, highly satisfactory/low risk, satisfactory/acceptable risk,
marginal/acceptable with some risk, and unacceptable/ unacceptable risk.
The agency also employed a performance risk assessment group (PRAG) to
separately evaluate offerors* past performance, using ratings of high
risk, medium risk, low risk, and neutral. After the initial review of
proposals, AMCOM conducted written discussions with all offerors in the
form of *errors, omissions, and clarifications* (EOC). The agency
completed its initial evaluation of proposals after receipt and review of
each offeror*s EOC responses. The contracting officer then established a
competitive range, comprising the proposals of Continental and Griffon,
the lowest-priced, highest-rated proposals.
After receipt of final proposal revisions from Continental and Griffon,
the Army*s final evaluation ratings were as follows:
Factor Griffon Continental
Technical Highly Satisfactory Satisfactory
Operational Highly Satisfactory Satisfactory
Management Highly Satisfactory Satisfactory
Past Performance Low Risk Low Risk
Evaluated Price $ 36,116,633 $ 30,058,203
Source Selection Decision at 2-7.
The contracting officer determined that Griffon*s superiority under the
technical, operational, and management factors, combined with its low risk
past performance assessment (equal to that of Continental), outweighed the
price difference and made Griffon*s proposal most advantageous to the
government. Id. at 8. Continental subsequently filed these protests with
our Office.
In its protests Continental raises numerous issues that can be grouped
into three general categories. First, Continental contends that the
agency*s evaluation of its proposal under the technical, operational, and
management factors was improper.[2] Second, Continental alleges that the
Army*s evaluation of Griffon*s proposal under all non-price factors,
including past performance, was unreasonable, and contends that AMCOM
improperly relaxed a solicitation requirement for Griffon. Lastly,
Continental alleges that the agency*s selection decision was unreasonable
and not in accord with the RFP*s stated award scheme. Our review of
Continental*s protest issues, as set forth below, is also grouped into the
same categories.
We conclude that most of the protester*s allegations do not provide a
basis for sustaining the protests. However, as explained below, in the
case of the agency*s evaluation of the awardee*s proposal under the past
performance factor, the record shows that the evaluation was unreasonable
such that the source selection decision is not supported by the record.
Evaluation of Continental*s Technical Proposal
Continental first argues that AMCOM*s evaluation of its proposal under the
technical, operational, and management factors was unreasonable and
unsupported. The protester essentially challenges the TET*s evaluation of
its proposal under all three technical evaluation factors and 11
subfactors, contending that its evaluation ratings should in every
instance have been one adjectival rating level higher than those
assigned. Although we do not here specifically address all of
Continental*s complaints about the evaluation of proposals and the
agency*s selection decision, we have fully considered all of them and find
that they afford no basis to question the agency*s selection decision.
In reviewing a protest against an agency*s evaluation of proposals, our
Office will not reevaluate proposals, but instead will examine the record
to determine whether the agency*s judgment was reasonable and consistent
with the stated evaluation criteria and applicable procurement statutes
and regulations. See Shumaker Trucking & Excavating Contractors, Inc.,
B-290732, Sept. 25, 2002, 2002 CPD P: 169 at 3; Hydraulics Int*l, Inc.,
B-284684, B-284684.2, May 24, 2000, 2000 CPD P: 149 at 14. A protester*s
mere disagreement with the agency*s judgment does not establish that the
evaluation was unreasonable. C. Lawrence Constr. Co., Inc., B-287066,
Mar. 30, 2001, 2001 CPD P: 70 at 4. As demonstrated below, our review of
the record provides us no basis to find the agency*s evaluation here
unreasonable or otherwise objectionable.
For example, the solicitation required that each offeror*s proposed RPVT
include an infrared (IR) enhancing device, for use in both the tracking
and live fire of heat-seeking weapon systems such as the Stinger missile
system. The RFP required that an offeror*s IR payload generate a minimum
energy intensity of 15 watts per steradian while the aircraft was in
flight at 100 miles per hour (mph) minimum. SOW S: 3.8.5. The RFP also
stated the agency*s desire that the minimum energy intensity be visible as
close to 360 degrees around the aircraft as possible, as well as the
desire that the offeror*s IR design be non-explosive and non-hazardous,
such that it could easily be transported worldwide without special
packaging and handling.
Continental proposed using its [DELETED] IR payload, which Continental
described as [DELETED]. The TET found that Continental*s proposal met the
RFP requirement regarding IR payload. While expressing some concern about
whether the [DELETED] of Continental*s IR payload would, as represented by
the offeror, be [DELETED] and finding this to be a weakness, the TET
correctly noted that this was a desired feature, and not a minimum
requirement. Based on a total assessment of the offer*s strengths and
weaknesses, including the [DELETED] IR payload, the TET rated
Continental*s proposal as satisfactory under the design approach
subfactor.
Continental argues that in the evaluation of its technical design, the TET
improperly ignored various proposal strengths, including that
Continental*s [DELETED] IR payload exceeded the solicitation*s minimum
[DELETED] requirement, is [DELETED], and [DELETED]. Continental argues
that had the TET evaluated its proposed design approach properly,
including these strengths associated with its IR payload, Continental*s
proposal would have been rated as highly satisfactory under the design
approach subfactor. We disagree.
The TET reasonably determined that although Continental*s proposal claimed
that its [DELETED] IR payload exceeded the minimum [DELETED], the
supporting documentation consisted of [DELETED] data. By contrast, the
RFP*s minimum [DELETED] requirement applied to the RPVT aircraft during
[DELETED]. Additionally, the TET found that while both [DELETED] of
Continental*s [DELETED] IR payload, Continental*s [DELETED] data did not
take these factors into account. Lastly, although Continental*s planned
IR payload claimed features that the solicitation characterized as
desirable (e.g., [DELETED]), Continental*s proposal did not provide
sufficient information to demonstrate that its IR payload would achieve
the benefits associated with the desirable characteristics. In sum, we
find that AMCOM*s evaluation of Continental*s proposal with regard to the
IR payload and other design approach requirements was proper, and the
assigned evaluation rating of satisfactory reasonable.
As another example, Continental argues that under the second technical
evaluation subfactor, production approach, the agency improperly rated
Continental*s proposal as satisfactory because the TET ignored
Continental*s [DELETED], and instead incorrectly identified as a proposal
weakness Continental*s alleged lack of understanding of environmental
stress screening (ESS).[3] Continental contends that had the agency
evaluated its proposal properly under the production approach subfactor,
it would have received at least a *highly satisfactory* evaluation rating.
Under the production approach subfactor, the TET determined that
Continental*s plan to [DELETED] offered an advantage to the government by
[DELETED] and constituted a proposal strength. However, the TET found
that Continental*s proposal showed a lack of understanding regarding ESS
that could affect the risk inherent to both the government and the
offeror, and constituted a proposal weakness. Overall, the TET determined
that Continental*s proposal both substantiated its production capabilities
and demonstrated an understanding of the RFP requirements, and thereby
rated the proposal as satisfactory under this subfactor.
We find no basis to question the Army*s evaluation of Continental*s
proposal under the technical approach subfactor. The TET reasonably found
that Continental*s lack of understanding regarding ESS constituted a
proposal weakness. Additionally, it is clear from the evaluation
worksheets that the TET considered Continental*s [DELETED] as part of its
evaluation here, but found that the offeror had failed to [DELETED].[4]
Having considered all aspects of the protester*s proposal, the Army
reasonably determined that Continental*s proposal under the technical
approach subfactor met all SOW requirements and properly rated the
proposal as satisfactory.
Under these and the other evaluation areas questioned by Continental, the
record reflects that the Army*s evaluation of the protester*s proposal was
reasonable and consistent with the solicitation criteria; Continental*s
objections essentially reflect its view that based on its extensive
experience as the incumbent RPVT contractor, its proposal should have
received a higher rating. This self-assessment and Continental*s
resulting disagreement with the agency*s assessments do not provide a
basis to call into question the agency*s evaluation here. Wahkontah
Servs., Inc.,
B-292768, Nov. 18, 2003, 2003 CPD P: __ at 7.
Evaluation of Griffon*s Technical Proposal
Continental also argues that the agency*s evaluation of Griffon*s proposal
under the technical, operational, and management factors was
unreasonable. Again, we have examined each of the protester*s arguments
in detail and find no basis to question the agency*s evaluation.
For example, Continental argues that AMCOM improperly rated Griffon*s
proposal as highly satisfactory under the technical factor, as well as
under the design approach and production approach subfactors.
Specifically, the protester contends that Griffon*s IR payload must be a
proposal weakness because it [DELETED]. Continental also alleges that
Griffon does not have the experienced workforce necessary to meet the RPVT
production requirements. Continental argues that with these weaknesses,
Griffon could not have reasonably received an overall highly satisfactory
rating under the technical evaluation factor.
In its evaluation of Griffon*s proposal under the technical factor, the
TET identified a total of eleven strengths, including six design approach
strengths and three production approach strengths. One of the design
approach strengths that the TET found in Griffon*s proposal concerned the
offeror*s IR design. The TET determined that Griffon*s proposed use of
[DELETED] for its IR payload was an innovation that was of value of the
government because it constituted use of a known, low risk technology.
More importantly, the TET determined that the [DELETED] of Griffon*s IR
payload was successfully tested and documented [DELETED], in comparison to
the RFP*s minimum requirement of 15 watts per steradian, and represented a
performance enhancement of benefit to the government. The TET also
determined under the production approach subfactor that Griffon*s planned
use of [DELETED], and the offeror*s approach to use of [DELETED] all
represented proposal strengths.
We find that the TET*s evaluation of Griffon*s proposal under the
technical factor, including the design approach and production approach
subfactors, was reasonable and consistent with the stated evaluation
criteria. Continental*s allegations that Griffon did not deserve the
highly satisfactory ratings it received amount to mere disagreement with
the agency*s evaluation, which again does not render it unreasonable.
Relaxation of Requirement
Continental protests that AMCOM improperly relaxed a solicitation
requirement for Griffon. Specifically, Continental alleges that the
agency allowed Griffon to propose to support only seven concurrent RPVT
operations, while the RFP required that offerors be able to perform eight
operations simultaneously. The protester argues that by not requiring
Griffon to staff for an eighth concurrent operation, the agency failed to
maintain a level field of competition for the offerors, resulting in an
unfair competitive advantage for the awardee.
It is a fundamental principle of government procurement that competition
must be conducted on an equal basis, that is, offerors must be treated
equally and be provided with a common basis for the preparation of their
proposals. Systems Mgmt., Inc.; Qualimetrics, Inc., B-287032.3,
B-287032.4, Apr. 16, 2001, 2001 CPD P: 85 at 8. When, either before or
after receipt of proposals, the government changes or relaxes its
requirements, it must issue a written amendment to notify all offerors of
the changed requirements. Federal Acquisition Regulation S: 15.206(a).
Our Office will sustain a protest that an agency improperly relaxed its
requirements for the awardee where the protester establishes a reasonable
possibility that it was prejudiced by the agency*s actions. Datastream
Sys., Inc. B-291653, Jan. 24, 2003, 2003 CPD P: 30 at 6.
The solicitation established that RPVT operational services were to be
provided at the Army*s National Training Center (NTC), Fort Irwin,
California as well as other specified military installations. The RFP
required offerors to have the capability both in equipment and personnel
to simultaneously perform five *deployed field operations,* while also
providing up to three RPVT missions concurrently at the NTC.[5] Griffon*s
initial proposal planned on using [DELETED] operation teams. In response
to agency discussions regarding how Griffon would support eight NTC and
deployed field operations concurrently, Griffon stated that it assumed
[DELETED], Griffon planned on having eight operation teams, [DELETED].[6]
AR, Tab K-2, Griffon*s Technical EOC Responses, at 10-12. The TET
subsequently determined that Griffon*s proposal met the requirement of
being able to perform eight RPVT operations concurrently, although it did
assess this aspect of Griffon*s proposal as a weakness under the
operational factor.
We find that the agency did not improperly relax the RFP requirement that
offerors have the capability to perform eight concurrent RPVT operations
for Griffon. Instead, it is clear that Griffon*s revised proposal
complied with the solicitation requirement here. While Griffon planned on
[DELETED] when faced with eight simultaneous operations, we find, and
Continental does not dispute, that the solicitation does not require that
offerors* operation teams be a certain minimum size. Accordingly, there
is no merit to the allegation that the agency improperly relaxed the
requirement here for Griffon.
Continental argues that even if the RFP did not specifically require
three-person operation teams, it was clear that Griffon [DELETED] for each
operation, and thus, if Griffon were to staff an eighth operation team it
would need to [DELETED]. We disagree. How Griffon decided to best
satisfy the agency*s requirements, including stated minimum requirements,
was simply an exercise of its business judgment. See Techniarts Sci. &
Tech. Corp., B-280521.2, B-280521.4, Oct. 15, 1998, 98-2 CPD P: 97 at
5-6. The fact that Griffon had originally proposed [DELETED] did not
thereby create a de facto requirement, and is irrelevant to our
determination of whether the agency improperly relaxed a requirement with
which Griffon failed to comply. Having determined that the RFP required
only that offerors be capable of performing eight concurrent
operations--not that offerors necessarily provide eight dedicated
operation teams or eight three-person operation teams--and that Griffon*s
proposal met this requirement, we find that the agency did not improperly
relax a solicitation requirement for the awardee.
Evaluation of Griffon*s Past Performance
Continental, the incumbent contractor for the RPVT system and services,
argues that the agency*s evaluation of Griffon*s past performance was
unreasonable. Specifically, Continental contends that Griffon has little
experience relevant to the various RFP requirements, including RPVT
production and operational services, and should not have received the same
performance evaluation rating of low risk as did the protester.
An agency*s evaluation of past performance, like the evaluation of other
aspects of an offeror*s proposal, will not be disturbed unless
unreasonable or inconsistent with the terms of the solicitation or
applicable statutes and regulations. See Jacobs COGEMA, LLC, B-290125.2,
B-290125.3, Dec. 18, 2002, 2003 CPD P: 16 at 23; Acepex Mgmt. Corp.,
B-283080 et al., Oct. 4, 1999, 99-2 CPD P: 77 at 3. When made applicable
by the solicitation, we review a past performance evaluation to determine
the similarity or relevance of the past performance information considered
by the agency. See CMC & Maint., Inc., B-292081, May 19, 2003, 2003 CPD
P: 107 at 3; NavCom Def. Elecs., Inc., B-276163, May 19, 1997, 97-1 CPD P:
189 at 3. Here, absent any basis in the record for the agency*s
conclusion that Griffon*s past contracts were similar or relevant to the
RFP requirements, we cannot conclude that the agency reasonably assigned
the same low risk rating to Griffon as it assigned to Continental, the
incumbent contractor.
The solicitation required offerors to submit information for contracts
received or performed during the past 3 years which are the *same or
similar* to the effort required by the RFP. RFP S: L.2.3(b). Among the
past performance information deemed relevant by the solicitation and which
offerors were required to provide was the dollar value of prior contract
efforts. Regarding the evaluation of offerors* past performance, the
solicitation stated as follows:
The Government will conduct a performance risk assessment based upon the
offerors* current and past record of performance as it relates to the
probability of successfully accomplishing this effort. The Government
will focus its inquiries on the offeror*s and its proposed subcontractor*s
. . . recent performance as it relates to all solicitation requirements,
including price, schedule and technical, operational and management
performance. . . . Absent any recent or relevant performance history over
the past three years on similar efforts, the offeror*s performance risk
will be considered neutral and the offeror will be evaluated neither
favorably nor unfavorably in the past performance area.
RFP S: M-3.5. The agency argues that the past performance of Griffon and
its subcontractors reflects experience directly related or similar to the
efforts required by the RFP, and that the low risk evaluation rating
assigned to Griffon was therefore proper. We disagree.
The PRAG considered three Griffon contracts in its evaluation of the
awardee*s past performance.[7] These were: (1) a $937,124 contract for
the design and construction of a sub-scale rocket-powered aerospace flight
vehicle for the National Aeronautics and Space Administration (NASA)
electromagnetic-levitation launch-assist accelerator track;[8] (2) a
$435,000 subcontract for the design and test engineering of a 6 x 14 foot
cryotank and related subcomponents for NASA; and (3) a $174,000
subcontract for the design and production of a magnetic resonance imaging
(MRI) composite table.
In its review of Griffon*s prior contracts, the PRAG reasonably found that
Griffon*s sub-scale spacecraft contract involved work similar to the
design, development, and testing efforts required by the solicitation
here; however, the agency found no similarities to many other areas
specified in the RFP, including RPVT production and operational services.
With regard to Griffon*s cryotank contract, the PRAG found no similarities
between it and the RFP requirements here, yet nonetheless deemed this past
performance relevant and supportive of its performance risk assessment in
that Griffon *met technical, cost and schedule requirements,* and
*consistently found way[s] to keep complex integration jobs on schedule,
resolved unanticipated problems and developed recovery plans for items
that fell behind.* AR, Tab R, PRAG Report at 11. We find the agency*s
analysis unconvincing, inasmuch as almost any contract effort would be
relevant by this standard. Lastly, the similarities found by the PRAG
between Griffon*s MRI composite table contract and the RFP requirements
here were limited to *the intricate RPVT airframe specifications* and
*innovative testing and composite production techniques.* We note that
Griffon*s cryotank and MRI table contracts, like its sub-scale spacecraft
contract, involved the design and development of single items and related
engineering services. By contrast, the efforts required by the RFP here
were not limited to design and engineering services, but also included the
production of an estimated 2,000 RPVTs and extensive operational
services.[9] We find, therefore, that the record lacks any basis upon
which the agency could reasonably have concluded that Griffon*s prior
contracts either individually or collectively demonstrated past
performance similar in scope to the efforts required by the RFP.
The past performance of Griffon*s proposed subcontractors also does not
provide a basis upon which the agency could have reasonably assessed the
awardee*s performance risk rating as low risk. As part of its evaluation,
the PRAG determined that Griffon*s two subcontractors, [DELETED] and
[DELETED], had relevant past performance in the areas of unmanned aerial
vehicle (UAV) flight control systems and engineering services,
respectively.[10] AMCOM contends, and we do not disagree, that the past
performance of Griffon*s subcontractors is similar to various engineering
services requirements of the RFP. However, the record provides no basis
to find that the similarity of the subcontractors* past performance
extends beyond engineering services, and like the past performance of
Griffon itself, demonstrates no relevance or similarity to the essential
RFP efforts of production and operational services.
In addition, as Continental contends, the record lacks any basis upon
which the agency could reasonably have concluded that Griffon*s past
contracts were similar in size to the contract being awarded. AMCOM does
not assert that Griffon has in fact performed contracts similar in size to
the current solicitation; instead, the agency argues that it did not need
to take the size of Griffon*s referenced contracts into account because it
was not required to do so by the solicitation. We disagree. As set forth
above, the solicitation deemed the dollar value of prior contract efforts
as relevant past performance information which offerors were required to
provide. The RFP also informed offerors that the agency*s past
performance evaluation would focus upon an offeror*s recent performance as
it relates to all RFP requirements, including price. Accordingly, we
think that the agency could not reasonably ignore whether Griffon had
performed contracts similar in size to the requirement here. Moreover, a
solicitation need not specifically mention magnitude in order for the size
of prior contracts to be a proper consideration in determining whether an
offeror has experience performing similar contracts. See Proteccion
Total/Magnum Sec., S.A., B-278129.4, May 12, 1998, 98-1 CPD P: 137 at 6.
Here, the largest prior effort apparent from Griffon*s proposal was less
than 3 percent the size of the contract contemplated here.[11] In our
view, the agency was not reasonable in determining that Griffon*s prior
contracts, a mere fraction of the size of the contract contemplated here,
were large enough to be deemed similar or relevant.
Given that Griffon did not submit a single past performance reference that
was the same or similar in scope or size to the RFP*s requirements, we
find the agency*s rating of low risk was unreasonable. See CMC & Maint.,
Inc., supra; Ostrom Painting & Sandblasting, Inc., B-285244, July 18,
2000, 2000 CPD P: 132 at 4-5.
Source Selection Decision
Lastly, Continental protests that the agency*s best value determination
was flawed because in making its price/technical tradeoff between the
proposals of Continental and Griffon, the agency*s approach was merely
mechanical and failed to compare the advantages of Griffon*s proposal to
those of Continental*s proposal or explain why any advantages in the
awardee*s proposal were worth the $6 million higher price. In light of
our determination that the agency*s evaluation of Griffon*s past
performance was unreasonable, and that a new evaluation and source
selection decision are necessary, we need not address this issue.
We deny the protests in part and sustain them in part. We recommend that
the agency reevaluate Griffon*s past performance in light of the *same or
similar* requirement in the RFP. If Griffon*s rating is other than low
performance risk, then the agency should make a new price/technical
tradeoff in accordance with the terms of the RFP. Depending on the
results of that tradeoff, the agency should either continue the contract
with Griffon or terminate Griffon*s contract and award to Continental. We
also recommend that Continental be reimbursed its costs of filing and
pursuing its protest, including reasonable attorney*s fees. 4 C.F.R. S:
21.8(d)(1) (2003). Continental shall submit its certified claim for
costs, detailing and certifying the time expended and costs incurred, with
the contracting agency within 60 days of receiving this decision. 4
C.F.R. S: 21.8(f)(1).
The protests are denied in part and sustained in part.
Anthony H. Gamboa
General Counsel
------------------------
[1] Although not set forth in the RFP, the agency apparently established
weights of 22.5 percent each for the technical, operational, past
performance, and price factors, and a weight of 10 percent for the
management factor. See Source Selection Decision at 8; Contracting
Officer*s Statement at 29.
[2] Continental also originally protested that the Army had improperly
adjusted its proposed price by $[DELETED]. As the agency addressed this
allegation in its report, and the protester failed to respond in its
comments, we consider Continental to have abandoned this argument and will
not consider it further. MFVega & Assocs., LLC, B-291605.3, Mar. 25,
2003, 2003 CPD P: 65 at 4.
[3] ESS is a technique that applies various types of stresses to help
detect latent and intermittent flaws in an electronic product or system
that could cause product failures. Contracting Officer*s Statement at
12. The SOW required that each offeror*s quality system plan include a
discussion of ESS.
[4] AMCOM also properly considered Continental*s [DELETED] as part of its
evaluation of the offeror*s past performance, which the agency rated as
low risk.
[5] The RFP did not state how often eight concurrent NTC and deployed
field operation missions would occur.
[6] Specifically, Griffon proposed that [DELETED].
[7] The agency properly determined that another Griffon prior effort, the
design and production of an experimental category, high performance,
6-place composite aircraft prototype, fell outside the 3-year time period
established by the RFP for the determination of relevant past performance.
[8] We note that while Griffon*s proposal stated that the dollar value of
its 3-month NASA subscale spacecraft contract was $937,124, NASA reported
that the total contract value was $39,124; the agency report does not
indicate that AMCOM resolved this contract size discrepancy.
[9] Griffon*s prices for the RPVT production line items constituted
approximately 25 percent of the total contract effort ($8,852,000 /
$36,116,633 = 24.5 percent). Griffon also estimated that *roughly 54
percent* of the total contract effort was directly related to operations.
AR, Tab K-2, Griffon*s EOC Responses, Griffon Fax Transmission to AMCOM,
Apr. 24, 2003, at 6.
[10] Similarly, Griffon*s final proposal stated that [DELETED]*s role in
contract performance would be in the areas of flight control systems,
engineering support, and engineering services (estimated at 7.4 percent of
Griffon*s total price), while [DELETED]*s role would be in the areas of
engineering support and engineering services (estimated at 4.3 percent of
Griffon*s total price), and that neither subcontractor would perform RPVT
production and operational services efforts. AR, Tab K-2, Griffon*s EOC
Responses, Griffon Fax Transmission to AMCOM, Apr. 24, 2003, at 3-5.
[11] $937,124 / $36,116,633 = 2.6 percent. Likewise, the largest prior
effort among Griffon*s subcontractors--the $1.4 million subcontract by
[DELETED] for various UAV engineering services--was less than 4 percent
the size of the contract contemplated here ($1,400,000 / $ 36,116,633 =
3.9 percent).