TITLE:  American Ordnance, LLC, B-292847; B-292847.2; B-292847.3, December 5, 2003
BNUMBER:  B-292847; B-292847.2; B-292847.3
DATE:  December 5, 2003
**********************************************************************
American Ordnance, LLC, B-292847; B-292847.2; B-292847.3, December 5, 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:   American Ordnance, LLC
    
File:            B-292847; B-292847.2; B-292847.3
    
Date:              December 5, 2003
    
Richard B. Oliver, Esq., and  Gregory Murphy, Esq., McKenna Long &
Aldridge, for the protester.
James J. McCullough, Esq., and Steven A. Alerding, Esq., Fried, Frank,
Harris, Shriver & Jacobson, for AMTEC Corp., an intervenor.
Joshua Kranzberg, Esq., and John W. Seeck, Esq., U.S. Army Materiel
Command, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Agency reasonably assessed weaknesses against protester*s proposal
where proposal failed to include information required by the solicitation.
    
2.  Agency was not required to discuss weaknesses in protester*s proposal
that did not make the proposal unacceptable or prevent protester from
having a reasonable opportunity for award.
DECISION
    
American Ordnance, LLC (AO) protests the award of a contract to AMTEC
Corp. under request for proposals (RFP) No. DAAA09-02-R-0064, issued by
the Department of the Army for a contractor to load, assemble and pack
charges for TNT demolition blocks. AO challenges several aspects of the
evaluation.
    

   We deny the protest.
    
The RFP provided for a *best value* award based on an evaluation of three
factors--manufacturing plan, past performance and small business
utilization--and price.  The manufacturing plan factor was comprised of
three subfactors--quality management system, essential processes and
procedures, and essential skills--and the small business utilization
factor was comprised of two subfactors--proposed small business
utilization and past small business utilization.  The manufacturing plan
factor was significantly more important than the other factors, the small
business utilization factor was less important than past performance or
price, and the non‑price factors combined were more important than
price.
    
Four offerors responded to the RFP, including AO and AMTEC.  The Army
evaluated the proposals, held discussions and requested, received and
evaluated final proposal revisions (FPR).  AO*s proposal was rated good
overall under the manufacturing plan factor, with ratings of excellent
under the quality management system and essential skills subfactors and
good under the essential processes and procedures subfactor; good overall
under the small business utilization factor; and excellent under the past
performance factor.  AMTEC*s proposal was rated excellent under every
factor and subfactor.  AO*s offered price was [DELETED], and AMTEC*s
$44,346,260.  The source selection authority (SSA) reviewed the evaluation
results and selected AMTEC*s proposal as offering the best value to the
government. 
    
AO protests the agency*s evaluation of its and AMTEC*s proposals on
several bases.  In reviewing a protest against an agency*s proposal
evaluation, our role is limited to ensuring that the evaluation was
reasonable and consistent with the terms of the solicitation and with
applicable statutes and regulations.  National Toxicology Labs, Inc.,
B-281074.2, Jan. 11, 1999, 99-1 CPD P: 5 at 3.  We have reviewed the
record and find all of AO*s arguments to be without merit.  We discuss its
primary arguments below.
    
AO EVALUATION
    
Manufacturing Plan
    
The Army identified six weaknesses in AO*s proposal under the essential
processes and procedures subfactor, under which AO*s proposal was rated
good.  Five of those weaknesses--[DELETED]; it did not allow sufficient
time to account for unexpected problems; it proposed to add two new
machine presses after first article testing was completed; and it proposed
to inspect and test tooling held in storage and replace such tooling as
necessary--reflected the Army*s concern that AO would experience delays
that would affect the first article or delivery schedule.  The sixth
weakness the agency identified was AO*s failure to provide sufficient
details regarding a specific gravity test that offerors were required to
perform on the ammunition blocks.
    
AO maintains that it was unreasonable for the Army to assess weaknesses
against its proposal for not including evidence [DELETED].  According to
AO, there is little risk that it will not obtain the approval, or that
seeking approval will delay contract performance, because the approval
will come from the same command that is conducting the procurement, and
because the equipment in question was stored for use in performing future
Army contracts (such as the one here) for TNT demolition blocks.
    
The evaluation in this area was reasonable.  First, since the solicitation
specifically required offerors planning to utilize government-furnished
property to submit with their proposals written permission to use that
property, there was nothing unreasonable in the Army*s assessing a
weakness against AO*s proposal for failing to do so.  See Brickwood
Contractors, Inc., B-290305, July 8, 2002, 2002 CPD P: 129 at 4.  While AO
may have believed that prompt approval was assured, and while approval may
well have been the likely outcome, the fact is that the request could be
denied or approval delayed and, in the absence of the required written
permission, the Army reasonably could take that possibility into
consideration.[1] 
    
AO*s argument regarding specific gravity testing also is without merit. 
The item specification for the TNT blocks required offerors to perform
this test and provided instructions on how to conduct it.  In its FPR, AO
stated, *Press set up determines pellet weight and density.  AO will
sample-inspect pellet weight and density to ensure that pellets meet all
specifications.*  AO FPR at 18.  The agency found that this statement,
without information on how the press fulfills the specification
requirements, warranted assigning AO*s proposal a weakness in this area. 
AO maintains that, notwithstanding the alleged lack of detail in its
proposal, there is no basis for finding any meaningful performance risk,
since the Army is aware that AO performs specific gravity testing on all
ammunition contracts and has a *stellar* record of quality assurance. 
This argument is without merit.  The item specification required testing,
and since AO did not provide any details in its proposal with respect to
gravity testing, the Army could reasonably rate the proposal weak in this
area.  AO*s assertion that the Army knows AO always performs specific
gravity testing on its ammunition contracts is not a substitute for
establishing this in its proposal; contracting agencies are not
responsible for evaluating information that is not included in a
proposal.  See General Sec. Servs. Corp., B‑280388, B-280388.2,
Sept. 25, 1998, 99-1 CPD P: 49 at 4 n.3. 
    
Small Business Utilization
    
Under the proposed small business utilization subfactor, proposals were to
be evaluated based on the complexity of the products or services to be
provided by the proposed small business subcontractors, the estimated
dollar amount of the products and services and, for large business
concerns, the realism of the proposed utilization.  The Army rated AO*s
proposal only good under this subfactor, because it did not show that AO
would subcontract complex items to small businesses.
    
AO asserts that its proposal should have been rated excellent under this
subfactor because it included a plan to subcontract 99.8 percent of all
subcontracted items to small business concerns.  According to AO, it
followed that small businesses would get their share of complex items. 
This argument is without merit.  AO*s proposal did not indicate that any
complex items would be subcontracted to small businesses; the mere fact
that AO intended to place virtually all subcontracts with small businesses
did not establish that these subcontracts would include complex items.  It
thus was reasonable for the agency to rate the proposal only good in this
regard. 
    
The Army also rated AO*s proposal only good under the past small business
utilization subfactor based on AO*s failure to provide information from
which it could determine whether previously subcontracted items were
similar to the TNT demolition blocks here.  AO asserts that this
conclusion was unreasonable since, as required by the RFP, it provided
Standard Forms 294 and 295, which identified each past contract number; AO
maintains that the evaluators could have used these contract numbers to
find the missing product information in the past performance volume of
AO*s proposal.
    
This argument is without merit.  The solicitation specifically advised
offerors to submit separate management, past performance and small
business utilization volumes, and to include information in each volume
specific to that volume.  RFP at 40.  Thus, the fact that the past
performance volume contained information on the subcontracted items did
not preclude the agency from finding that the failure to provide the
required information in the small business utilization volume was a
weakness.  It is an offeror*s obligation to submit an adequately written
proposal for the agency to evaluate, and an offeror fails to do so at its
own risk.  Securicor Sicherheitsdienste, B-292723, Nov. 18, 2003, 2003 CPD
P: __; United Defense LP, B‑286925.3 et al., Apr. 9, 2001, 2001 CPD
P: 75 at 19.   
    
DISCUSSIONS
    
AO complains that the agency failed to hold meaningful discussions because
it did not point out any of the weaknesses discussed above under the
manufacturing plan or small business utilization factors.
    
Although discussions must address at least deficiencies and significant
weaknesses identified in proposals, the scope and extent of discussions
are largely a matter of the contracting officer*s judgment.  In this
regard, we review the adequacy of discussions to ensure that agencies
point out weaknesses that, unless corrected, would prevent an offeror from
having a reasonable chance for award.  An agency is not required to afford
offerors all encompassing discussions, or to discuss every aspect of a
proposal that receives lower than the maximum score, and is not required
to advise an offeror of a minor weakness that is not considered
significant, even where the weakness subsequently becomes a determinative
factor in choosing between two closely ranked proposals.  Northrop Grumman
Info. Tech., Inc., B‑290080 et al., June 10, 2002, 2002 CPD P: 136
at 6.
    
Here, none of the identified weaknesses prevented AO*s proposal from being
considered fully acceptable or otherwise from having a reasonable chance
of receiving the award.  Rather, the weaknesses merely resulted in AO*s
proposal being rated good rather than excellent under the factors in
question, and the award ultimately was made to AMTEC, not because AO*s
proposal was deficient, but because AMTEC*s was superior.  Development
Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD P: 54 at 7.  Under
these circumstances, the agency was not required to discuss these
weaknesses with AO.[2]
    
AMTEC EVALUATION
    
AO asserts that the agency improperly rated AMTEC*s proposal excellent
under the past small business utilization subfactor, since the SSA
recognized that AMTEC*s proposal lacked certain documentation, including
documentation to support its estimate of 95 percent past small business
utilization.  This argument is without merit.  As AMTEC is a small
business concern, it was not required to document past small business
utilization.  RFP at 43.  Thus, the agency reasonably determined that the
absence of documentation was not a basis for downgrading the proposal.
    
BEST VALUE DETERMINATION
    
AO alleges that, in making its best value determination, the Army ignored
the evaluation criteria and AO*s price advantage, and instead made award
on the basis of a lowest risk, reasonable price analysis.  Our review of
an agency*s price/technical tradeoff decision is limited to a
determination of whether it was reasonable and consistent with the
evaluation criteria enunciated by the solicitation.  Construction Tech.
Labs., Inc., B-281836, Apr. 12, 1999, 99-1 CPD P: 71 at 11.  An agency may
select
a higher-priced, higher‑rated offer where the decision is consistent
with the evaluation criteria and the agency reasonably determines that the
superiority of the higher-priced offer outweighs the price difference. 
National Toxicology Labs., Inc., supra, at 7. 
    
The tradeoff here was unobjectionable.  The source selection document
demonstrates that the SSA specifically considered the relative strengths
and weaknesses of AO*s and AMTEC*s proposals under each evaluation factor
and subfactor, and concluded that, among other things, AO*s proposal
contained some risk of delayed performance, while AMTEC*s did not.  The
SSA then concluded that, because prompt delivery was critical to the
agency, even with its [DELETED] percent higher than AO*s price), AMTEC*s
proposal represented the best value to the government because it presented
the least amount of performance risk.  Source Selection Decision at 19,
20, 22-24.  Although AO maintains that the risk represented by its
proposal is only minor, the agency could reasonably conclude that, in
light of the importance of prompt delivery, AMTEC*s proposal provided the
best value.[3]
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1]AO initially challenged all five of the evaluated weaknesses concerning
production or first article delay.  In its report, the Army explained why
each assessed weakness justified its concern.  In its report comments, AO
continued to assert generally that the Army*s assessment of all five
weaknesses was unreasonable, but only specifically addressed the
weaknesses regarding [DELETED].  We have reviewed the Army*s position with
respect to the remaining weaknesses and find that its conclusions were
reasonable; in the absence of any showing by AO to the contrary, there is
no basis for us to question the assigning of those weaknesses.
[2] In any case, we note that, with respect to the small business
utilization factor, the agency pointed out to AO that it had failed to
provide specifics on individual contracts, that it could not determine the
complexity of work performed or similarity to this procurement of past
contracts, and that AO had not provided all information requested by the
solicitation.  Discussion Letter to AO, Apr. 17, 2003, at 3.
[3] In its initial protest, AO alleged that the Army improperly rated
AMTEC*s proposal excellent under the manufacturing plan and past
performance factors.  We dismissed that aspect of the protest as legally
insufficient because the protest was based solely on AO*s *information and
belief* that AMTEC had not recently manufactured the TNT demolition
blocks, with no further explanation or evidence establishing the basis for
the assertion.  AO requests that we reconsider our decision in this regard
(it also reasserted the argument in its comments on the agency report). 
According to AO, in dismissing these arguments, we overlooked its
statement that *AMTEC however has not recently performed contracts for the
demolition blocks or similar items.*  AO maintains that this statement was
sufficient to warrant fully developing the issue.  We disagree.  As stated
in our dismissal, for a protest to be legally sufficient, a protest must
provide, at a minimum, either allegations or evidence sufficient, if
uncontradicted, to establish the likelihood that we will find improper
agency action.  AO did not provide any evidence supporting its statements,
and AO*s statements alone did not establish the likelihood that we would
sustain the protest.  An assertion, without further supporting details or
evidence, is essentially no more than speculation and does not meet the
standard contemplated by our Regulations for a legally sufficient
protest.  Science Applications Int*l Corp., B-265607, Sept. 1, 1995, 95-2
CPD P: 99 at 2‑3.  Accordingly, we deny the request for
reconsideration.