TITLE: Continental RPVs, B-292768.6, April 5, 2004
BNUMBER: B-292768.6
DATE: April 5, 2004
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Continental RPVs, B-292768.6, April 5, 2004
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-292768.6
Date: April 5, 2004
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.
Edward T. Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency*s source selection decision was flawed is denied where
the record reveals that the agency reasonably explained why the technical
advantages offered by the awardee*s proposal were worth its higher price.
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 challenges the adequacy of the agency*s revised best
value determination, which the agency performed in response to our
decision of December 11, 2003, sustaining Continental*s prior related
protest. Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2003 CPD
P: ____.
We deny the protest.
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. 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. Award was to be made to the responsible offeror whose
proposal was determined to be most advantageous, or the *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 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
AR, Tab U-1, Source Selection Decision, Aug. 15, 2003, 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.[2] Id. at 8. Based on this determination, the agency made
award to Griffon.
Continental subsequently filed two protests with our Office arguing that
the agency*s evaluation of its proposal under the technical, operational,
and management factors was improper; that the Army*s evaluation of
Griffon*s proposal under all non-price factors, including past
performance, was unreasonable; that AMCOM improperly relaxed a
solicitation requirement for Griffon; and that the agency*s selection
decision was unreasonable and not in accord with the RFP*s stated award
scheme.
In deciding the protests, we concluded that most of the allegations were
without merit. However, with regard to the agency*s evaluation of the
awardee*s proposal under the past performance factor, we found that there
was no basis in the record upon which the agency could reasonably have
determined that Griffon*s past performance was, in accordance with the
terms of the solicitation, the *same or similar* to the solicitation
requirements. As a consequence we sustained the protest on that ground
and recommended that the agency reevaluate Griffon*s past performance in
light of the *same or similar* requirement in the RFP. Our Office further
recommended that the agency perform a new price/technical tradeoff if the
reevaluation resulted in Griffon*s past performance being other than *low
risk.*
The agency implemented our recommendation by reconvening the PRAG, which
reevaluated Griffon*s past performance and changed its original *low risk*
rating to *neutral.* AR, Tab CC, Addendum to Performance Risk Assessment
Report, Dec. 18, 2003. A *neutral* rating was required, according to the
agency, because Griffon *[did] not exhibit sufficient similar or same
performance history experience in either scope or size, to the RPVT
solicitation work.* Id. After considering Griffon*s revised past
performance rating in conjunction with *all evaluation information from
the SSEB process,* the contracting officer (who was the source selection
authority) issued a new source selection decision affirming the initial
award to Griffon. Contracting Officer*s Statement, Jan. 30, 2004, at 1.
This decision was documented in an *addendum* to the prior source
selection decision. The addendum concluded:
The Source Selection Authority has reviewed each contractor*s Area ratings
as documented by the Source Selection Evaluation Board (SSEB) process and
has taken into account Griffon*s reevaluated past performance. While
Griffon*s proposal was higher priced than Continental*s, it is the
decision of the SSA that the evaluated technical superiority of Griffon*s
proposal in three evaluation areas*Technical, Operational, and
Management*combined with its neither favorable nor unfavorable Neutral
past performance assessment*makes Griffon*s proposal the overall best
value to the Government. Continental*s Low Risk past performance rating
and more advantageous bid price does not overcome the superiority of
Griffon*s technical, operational, and management proposals.
AR, Tab DD, Addendum to Source Selection Decision, Dec. 19, 2003, at 2.
In the addendum, the contracting officer also discussed the specific
benefits associated with the numerous strengths and enhancements of
Griffon*s proposal, which justified the award notwithstanding its higher
price. As they relate to the subject protest, these benefits were
associated with the following four aspects of Griffon*s proposal: (1)
Griffon*s airframe design and power plant; (2) its infared (IR) source;
(3) its proposed use of *standard composite materials* for construction;
and (4) Griffon*s use of a [deleted] for beyond visual range ground
control of the RPVTs.
In discussing the advantages associated with Griffon*s airframe design and
power plant, the contracting officer stated that Griffon*s design was
*robust,* and that Griffon *verified its key performance parameters* for
its airframe design and power plant through test flights and substantiated
the performance characteristics of its design with detailed information
and performance data. The contracting officer added that Griffon*s
airframe design and power plant provided *the flexibility for low risk
growth in speed, payload, and endurance potential without modifying the
existing airframe* and that Griffon*s *[deleted] airframe design provides
the ability to change airframe components easily in response to any future
growth requirements.* Id.
As part of the initial source selection decision, the agency had stated
that Continental provided a *few minor performance enhancements* for its
airframe as well, *which could benefit the Government, by providing
flexibility to add new requirements without having to design another
airframe.* AR, Tab U-1, supra, at 2. However, the agency concluded that
Continental*s strengths in this regard were offset by several weaknesses,
including Continental*s failure to provide adequate information regarding
*the basic airframe* and information pertaining to the performance of the
airframe. Id.
In the revised source selection decision, the contracting officer also
discussed the advantages associated with Griffon*s IR source, which used
[deleted].[3] Griffon*s IR source was an *enhancement,* according to the
agency, because its energy output was more than [deleted] the RFP*s
minimum requirement of 15 watts per steradian. AR, Tab DD, supra, at 2.
The contracting officer stated that this enhancement was valuable because
it *provided significantly more margin to offset the effects of winds at
100 miles per hour, and there were no concerns indicated by Government
evaluators about the aspect angle blockage by the RPVT design.* [4] Id.
Griffon*s IR source was of further benefit because it allowed *for growth
in IR requirements without having to redesign or buy a new IR device.*
Id.
As part of her revised tradeoff analysis, the contracting officer also
indicated that Griffon*s *proposed use of standard composite materials for
construction . . . provides significant benefits to the government by
reducing production costs and increasing the reliability of the target.*
Id. at 3. During its evaluation of Griffon*s proposal, the agency
highlighted Griffon*s use of *standard composite materials,* specifically
[deleted], for construction of the RPVTs. This was a strength, according
to the agency, because the materials were *low technology and low risk.*
AR, Tab O-2, Interim Technical Evaluation Report, Evaluators* Findings,
June 27, 2003, at 2.
The contracting officer*s revised tradeoff cited Griffon*s use of a
[deleted] for the beyond visual range ground control station as an
advantage. The TET stated that Griffon*s beyond visual range ground
control station used *a simple readily available commercial off the shelf
[deleted],* adding that *such equipment is of value to the Government as
it avoids costly specialized equipment.* AR, Tab O-2, Interim Technical
Evaluation Report, attach., Griffon Technical Area Rollup, at 1. The TET
also stated that Griffon*s beyond visual range ground control station
*provided in a [deleted], is an innovation that provides protection from
obsolescence and flexibility to change/add to features of the control
system with little or no hardware changeout/modification.* AR, Tab P-2,
Final Technical Evaluation Report for Griffon, at 1. The contracting
officer reiterated these points in her revised tradeoff analysis. AR, Tab
DD, supra, at 3.
In a letter dated December 23, 2003, the agency notified Continental of
its determination that Griffon remained the successful offeror after the
reevaluation. Continental requested a debriefing on January 5, 2004, and
the agency faxed a letter to Continental on January 7, denying
Continental*s request for a debriefing, but provided Continental with a
redacted copy of the agency*s source selection decision. On January 9,
Continental filed this protest.
In its protest, Continental argues that the contracting officer*s revised
best value determination was flawed in three main respects. First,
according to Continental, the contracting officer*s best value analysis
was mechanical in nature and failed to compare the advantages of Griffon*s
proposal to those of Continental*s proposal or explain why any advantages
in Griffon*s proposal were worth the $6 million higher price. Second,
Continental argues that several of the advantages offered by Griffon,
which were cited as the reasons for selecting Griffon*s higher priced
proposal, were not valid discriminators since Continental offered the same
or similar advantages. Third, Continental asserts that the contracting
officer*s revised source selection decision was made in the *heat of the
adversarial process* and therefore inherently flawed.[5]
Where, as here, the RFP indicates that technical considerations are more
important than price considerations in determining the best value to the
government, selecting a technically superior, higher priced proposal is
proper where the agency reasonably concludes that the price premium is
justified in light of the proposal*s technical superiority. The propriety
of such a price/technical tradeoff decision turns not on the difference in
the technical scores or ratings per se, but on whether the selection
official*s judgment concerning the significance of the difference was
reasonable and adequately justified in light of the RFP*s evaluation
scheme. Shumaker Trucking and Excavating Contractors, Inc., B-290732,
Sept. 25, 2002, 2002 CPD P: 169 at 6.
In arguing that the agency*s best value determination was *mechanical,*
Continental asserts that the contracting officer focused solely on the
weights of the various evaluation factors and Griffon*s superior
adjectival ratings. Contrary to Continental*s contentions, however, the
revised source selection decision clearly reflects the fact that in
reaching its decision, the agency considered at length the various
strengths and enhancements offered by Griffon*s proposal and how they were
beneficial to the government. Moreover, in its consideration of Griffon*s
technical advantages, the agency expressly concluded that they outweighed
Continental*s $6 million price advantage and low past performance risk.
This simply is not a case where the agency*s best value determination was
based on a purely mechanical point scoring comparison without any
qualitative assessment or explanation of why the evaluated technical
superiority of an offer justified its higher price. Compare Shumaker
Trucking and Excavating Contractors, Inc., supra, at 7-8 (concluding that
best value determination was unreasonable where it focused on the
awardee*s higher point score, without comparing the advantages of the
awardee*s proposal or considering why the advantages were worth its higher
price) with Ready Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001
CPD P: 90 at 12-13 (finding best value determination reasonable where the
agency used its judgment in determining that a protester*s proposal*s
technical advantages were not worth its higher price).
As a second basis for challenging the agency*s best value decision,
Continental argues that its proposal contained several of *the same or
similar strengths* that the agency used as a basis for concluding that
Griffon*s proposal was worth the extra $6 million. Continental argues
that these strengths therefore could not constitute valid discriminators,
and thus rendered the agency*s price/technical tradeoff unreasonable. Our
review of the record indicates that this argument is also without
merit.
In support of this protest ground, Continental notes that the contracting
officer justified award to Griffon, in part, based on Griffon*s airframe
design and power plant because they allowed for future growth without
having to design a new airframe, which strength, the agency assertedly
also found in Continental*s proposal. Our review does not support
Continental*s position.
Specifically, with regard to Griffon*s proposal, the record reflects that
the contracting officer*s price/technical tradeoff did in fact emphasize
the fact that both Griffon*s airframe design and power plant provided *low
risk* flexibility for future growth without the need for modifying the
airframe. Moreover, the agency specifically emphasized the fact that
Griffon substantiated the performance characteristics of its airframe
design with detailed information and data as well as the [deleted] nature
of Griffon*s airframe design. With regard to Continental*s proposal,
while the agency noted that Continental*s airframe design (there is no
mention of Continental*s power plant) could provide flexibility for adding
new requirements without having to redesign the airframe, the agency also
characterized this as a *minor performance enhancement* and concluded that
this strength was offset by Continental*s failure to provide adequate
information regarding its airframe. AR, Tab DD, supra, at 2. Given the
agency*s conclusions about the various advantages associated with
Griffon*s airframe design and power plant and the fact that the strength
of Continental*s airframe design was offset by associated weaknesses, the
agency acted reasonably when it considered Griffon*s airframe design and
power plant as discriminating advantages in the revised tradeoff analysis.
Continental also contends that the agency improperly justified its award
to Griffon based on Griffon*s use of [deleted] for its IR source since
Continental also proposed to use [deleted] as its IR source. While the
agency*s initial source selection decision listed Griffon*s use of
[deleted] as a strength, in the revised source selection decision, the
contracting officer explains that Griffon*s proposal was worth the extra
cost because Griffon*s IR source output was more than [deleted] the RFP*s
requirements. The contracting officer*s tradeoff analysis simply does not
discuss the advantages associated with Griffon*s use of catalytic
converters. Because the agency did not rely on Griffon*s use of [deleted]
as a discriminator, Continental*s challenge in this regard is without
merit.
Continental further argues that the agency improperly justified selection
of Griffon*s higher priced proposal based on Griffon*s use of standard
composite materials for target construction and its use of a [deleted] for
its beyond visual range ground control station, because Continental
offered essentially the same strengths.
Regarding the use of composite materials, the record reflects that the
agency found Griffon*s use of [deleted], to be a strength because these
materials were *low technology and low risk.* AR, Tab O-2, supra, at 2.
Continental contends that it offered the same strength, pointing to the
statement in its proposal that *[t]he JFT [joint force target] will be
constructed of composite materials. The wing and horizontal tail will be
made using [deleted] and the fuselage will be constructed using
[deleted].* Continental*s Proposal, vol. I S: IV, at 31.
In addition, the agency found Griffon*s proposed use of a simple readily
available commercial off-the-shelf [deleted] for its beyond visual range
ground control station to be a strength because it avoided costly
specialized equipment. Continental argues that it offered a similar
strength, pointing to the section of its proposal describing its portable
ground control station and explaining that it consists of [deleted]
modules, one of which was a computer display module that could *range from
a commercial [deleted] to a ruggedized industrial unit.* Continental*s
Proposal, attach. J, p.1.
While Continental asserts that its proposal contained essentially the same
strengths with regard to the use of composite construction materials and a
[deleted] control station, we see substantial differences between the
proposals in these areas and the record does not evidence that the agency
found either of these aspects of Continental*s proposal to be strengths or
enhancements that were beneficial to the government.[6] Since the record
shows that the agency reasonably identified advantages in Griffon*s
proposal in these two areas, and no corresponding advantages in
Continental*s proposal, we see no basis to object to the agency*s
consideration in its tradeoff decision of the strengths found in Griffon*s
proposal that were not offered by Continental.
As a final matter, Continental argues that the contracting officer*s
addendum to the source selection decision was invalid *because it was
essentially made in the heat of the adversarial process* and therefore did
not reflect the fair and considered judgment of the agency. Protester*s
Comments on the Agency Report at 13. Continental expressly disavows any
claim that the contracting officer was biased or did not act in good faith
when she made her revised source selection decision. Rather, Continental
argues, because the contracting officer was actively involved in defending
the first source selection decision that was protested to our Office, and
because she made her revised decision in favor of Griffon within 1 week of
receiving the decision from our Office sustaining the protest, *she was
still affected by the heat of the litigation,* which clouded her
objectivity and rendered her source selection decision unfair.
Continental*s Comments, at 15. We disagree.
When an agency engages in a reevaluation or redetermination while
simultaneously defending against an ongoing protest, we will afford little
or no weight to these post-protest activities since they are **prepared in
the heat of the adversarial process,* and may not represent *fair and
considered* judgments.* ManTech Envtl. Research Servs. Corp., B-292602,
B-292602.2, Oct. 21, 2003, 2003 CPD P: 221 at 7 (quoting Boeing Sikorsky
Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD P: 91
at 15).
In this case, however, the agency*s revised source selection decision was
not made while defending against a protest. Rather, the agency made its
revised source selection decision after receiving the decision issued by
our Office sustaining Continential*s first protest. Because the agency*s
revised source selection decision was prepared after Continental*s prior
protest had been resolved, it was not prepared *in the heat of the
adversarial process.* Intellectual Properties, Inc., B‑280803.2,
May 10, 1999, 99-1 CPD P: 83 at 4. Nor was the agency*s revised decision
rendered suspect by virtue of the agency*s expeditious implementation of
our recommendations in Continental*s prior related protest, which was
sustained, or because the agency*s revised award decision followed closely
on the heels of our decision in the prior protest.
The protest is denied.
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 Agency Report (AR), Tab U-1, Source Selection
Decision, Aug. 15, 2003, at 8.
[2] The contracting officer was also the Source Selection Authority (SSA)
under the subject procurement.
[3] In the initial source selection decision, the contracting officer
noted Griffon*s use of [deleted] technology for its IR source as one of
Griffon*s strengths. AR, Tab U-1, Source Selection Decision, Aug. 15,
2003, at 4.
[4] The solicitation required that each offeror*s proposed RPVT include an
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 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.
[5] Continental also takes issue with the agency*s determination that it
was not required to suspend performance of Griffon*s contract pending the
outcome of this protest on the ground that the statutory stay of
performance set forth under the Competition in Contracting Act of 1984, 31
U.S.C. S: 3553 (2000), was not triggered. Because Continental*s protest
is denied, this issue is academic. Parmatic Filter Corp., B-285288.3,
B-285288.4, Mar. 30, 2001, 2001 CPD P: 71 at 5 n.3.
[6] Continental does not challenge the underlying technical evaluation of
its proposal in these areas. In fact, we would not consider such a
challenge because the agency*s technical evaluation was the subject of the
first two protests filed by Continental and, as noted above, we found the
protests to be without merit on these issues.