TITLE: CAE USA, Inc., B-293002; B-293002.2, January 12, 2004
BNUMBER: B-293002; B-293002.2
DATE: January 12, 2004
**********************************************************************
CAE USA, Inc., B-293002; B-293002.2, January 12, 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: CAE USA, Inc.
File: B-293002; B-293002.2
Date: January 12, 2004
David B. Apatoff, Esq., and Michael E. Ginsberg, Esq., Arnold & Porter,
for the protester.
Helaine G. Elderkin, Esq., Carl J. Peckinpaugh, Esq., and Charles S.
McNeish, Esq., for Computer Sciences Corporation, the intervenor.
Harlan F. Gottlieb, Esq., Department of the Army, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that the agency unreasonably evaluated the protester*s and
awardee*s proposals submitted in response to a solicitation for the
design, development, operation and maintenance of an aircraft simulation
facility is denied where the record shows that the agency*s evaluation of
proposals was reasonable and in accordance with the evaluation criteria,
and the protester*s contentions represent only its disagreement with the
agency*s evaluation.
DECISION
CAE USA, Inc. protests the award of a contract to Computer Sciences
Corporation (CSC) under request for proposals (RFP) No. N61339-02-R-0076,
issued by the Orlando Naval Air Systems Command, Training Systems
Division, for the design, development, operation and maintenance of a
simulation training facility. CAE protests the evaluation of proposals and
the selection of CSC's higher-priced, higher‑rated proposal for
award.
We deny the protests.
BACKGROUND
The Army Aviation Center at Fort Rucker, Alabama, currently trains and
prepares helicopter pilots for combat missions. The agency explains that
the procurement here is the result of its determination that *future
flight school pilot simulation training be provided by a long-term (19 1/2
years) services type contract.* Under this RFP, *all aviation simulation
trainers are to be built, owned, operated and maintained by a single
contractor.* The contractor will also provide *all logistical support, to
include implementing technology upgrades into the simulators, scheduling
all simulation training and ensuring that all simulators remain current
with the latest aircraft hardware and software configurations.*
Contracting Officer*s Statement at 2. In short, the purpose of the
solicitation is for the Army to acquire *a world-class helicopter pilot
simulation training program based upon a contractor *turn-key* type
operation.*[2] Agency Report (AR), Tab M, Proposal Analysis
Report/Business Clearance Memorandum/Source Selection Document (BCM), at
1.
The RFP required that the successful contractor achieve *Initial
Operational Capability* (IOC) within 15 months of contract award. To
achieve IOC, the contractor must deliver at least 30 percent of the TH-67
simulators proposed (but no fewer than eight), accredited by the agency as
ready for training, along with associated training capability. The
contractor is also required to achieve a second IOC within 18 months of
contract award; in order to achieve this IOC, the contractor must deliver
at least six advanced aircraft virtual simulators (AAVS), as well as
associated training capability. The contractor is required to reach all
aspects of full operational capability within 57 months of contract
award. RFP at 37.
The RFP provided for the award of a fixed-price requirements contract, for
a base period of 6 months with 19 1-year option periods, to the offeror
submitting the proposal representing the best value to the government,
based upon the following evaluation factors listed in descending order of
importance: technical/management, performance risk/past performance,
price, and small disadvantaged business (SDB) participation/small business
subcontracting plan. The RFP advised that the technical/management factor
was significantly more important than the performance risk/past
performance factor, and that all non-price factors, when combined, were
significantly more important than price. The solicitation stated that the
technical/management factor was comprised of the following
equally-weighted subfactors: recognition and understanding of service
requirements; effectiveness and efficiencies of services; program
management; proposed statement of work (SOW); and proposed integrated
master schedule, integrated master plan, safety assessment report, quality
assurance plan, and requirements traceability matrix.[3] The performance
risk/past performance factor was comprised of the following subfactors
listed in descending order of importance: relevant past performance,
schedule, and cost/price controls. The RFP also provided that *[t]he
Government intends to evaluate proposals and award a contract without
discussions,* and cautioned offerors that *each initial offer should
contain the Offeror*s best terms from a Technical/Management and Price
standpoint.* RFP at 99.
The RFP contained detailed instructions for the preparation of written
proposals and oral presentations. With regard to written proposals, the
RFP provided for the submission of copies of the slides that comprise the
oral presentations regarding the technical/management requirements, a
technical/management proposal, a performance risk/past performance
proposal, a price/administrative proposal, and a SDB proposal. The
solicitation cautioned here that *a proposal must be internally consistent
or the proposal will be considered unrealistic and may be considered
unacceptable.* RFP at 80.
With regard to the technical/management proposal, the RFP requested that
the written proposal include the following three sections: recognition
and understanding of service requirements, effectiveness and efficiencies
of services, and program management. The RFP advised offerors that the
requirements set forth in the RFP*s SOO and SSRD were to be addressed in
the written technical/management proposal. Offerors were also to provide
a SOW in their written proposals that *delineate[s] all tasks necessary to
achieve the objectives of the FSXXI Simulation program throughout the life
of the contract,* and were advised that the SOW was to *describe what work
is to be accomplished* and be based on the SOO and SSRD. RFP at 88.
Additionally, the technical/management proposal was to include an
integrated master plan, integrated master schedule, and a quality
assurance plan. The RFP also stated that the successful offeror*s SOW,
integrated master plan, integrated master schedule, and quality assurance
plan would be incorporated into the awarded contract.
The solicitation informed offerors that oral presentations would be
limited to 4 hours in length, and detailed what the offerors were to
describe during the presentations.
For example, with regard to the facilities to be provided by the
successful contractor, the RFP (at 83) stated as follows:
Describe your Training Facility Implementation Plan. Identify the
location of the facilities you plan to utilize. If you plan to utilize
Government owned facilities, describe the facility modifications you will
make to accommodate your training solution, what additional facilities are
required and how you will provide them, what training devices you will put
in what facilities, and how you will integrate facility operations. If
your proposal includes off-post facilities for student training, describe
how the facilities will be used for training, and the distance (in miles)
of these facilities to Fort Rucker, Alabama.
The agency received written proposals from CSC and CAE by the RFP*s
closing date, and oral presentations were conducted. CSC*s proposal was
evaluated as *highly satisfactory* with *low* proposal risk under the
technical/management factor, *very low* risk under the performance
risk/past performance factor, and *unsatisfactory* under the SDB
participation/small business subcontracting plan factor, at an evaluated
price of $1,085,000,000.[4] CAE*s proposal was evaluated as *[DELETED]*
with *[DELETED]* proposal risk under the technical/management factor,
*[DELETED]* risk under the performance risk/past performance factor, and
*[DELETED]* under the SDB participation/small business subcontracting plan
factor, at an evaluated price of $912,383,865. AR, Tab M, BCM, at 5. The
agency, due to the evaluated weaknesses and deficiencies in the offerors*
proposals, established a competitive range of both offerors, conducted
discussions, and requested final proposal revisions.
CSC*s revised final proposal was evaluated as *highly satisfactory* with
*low* proposal risk under the technical/management factor, *very low* risk
under the performance risk/past performance factor, *marginal* under the
SDB participation/small business subcontracting plan factor, at an
evaluated price of $1,108,000,000. In evaluating CSC*s proposal under the
technical/management factor, the agency identified 13 *enhancing
features,* 49 proposal *strengths,* and 2 proposal *weaknesses.* AR, Tab
M, BCM, at 5.
CAE*s revised final proposal was evaluated as *[DELETED]* with *[DELETED]*
proposal risk under the technical/management factor, *[DELETED]* risk
under the performance risk/past performance factor, *[DELETED]* under the
SDB participation/small business subcontracting plan factor, at an
evaluated price of $948,970,244. Specifically, in evaluating CAE*s
proposal under the technical management factor, the agency identified
[DELETED] *enhancing features,* [DELETED] proposal *strengths,* and
[DELETED] proposal *weaknesses.* The agency noted that the evaluation of
CAE*s proposal as *[DELETED]* with *[DELETED]* risk under the
technical/management factor was *primarily based upon* two aspects of
CAE*s proposal: (1) CAE*s *facility plan is confusing and ambiguous,* and
(2) the *lack of substantive description across all technical proposal
documents led the [agency] to believe that CAE did not have a clear
understanding of the FSXXI* requirements. Id. at 5, 7.
The agency determined that CSC*s higher-rated, higher-priced proposal
represented the best value to the government. In reaching this
conclusion, the agency noted, among other things, that the proposal*s
rating of *highly satisfactory* with *low* risk under the most important
technical/management factor *demonstrates CSC*s thorough understanding of
FSXXI simulation services requirements,* and that *CSC*s proposed off-post
facility solution is a well-planned approach, which should minimize any
delivery schedule slip and poses no known cost risks to the Government.*
In contrast, the agency noted that the rating of CAE*s proposal under the
technical/management factor of *[DELETED]* with *[DELETED]* risk reflected
*disconnects between one proposal document or section and another, and a
revised facilities plan that is confusing and ambiguous.* The agency
concluded that the *enhancing features and proposal strengths denoted in
CAE*s Revised Final Proposal were not of enough merit to overcome the
significant problems with the proposal[*]s lack of substantive technical
descriptions and cost/schedule risks inherent in CAE*s facility
approach.* AR, Tab M, BCM, at 8-10. Award was made to CSC.
CAE requested and received a debriefing. During the debriefing, the
agency provided CAE with CAE*s and CSC*s overall ratings and evaluated
prices, as well as CAE*s factor by factor ratings. The agency also
informed CAE during the debriefing that its proposal*s *[DELETED]* rating
under the technical/management factor was primarily the result of its
revised facility plan and the agency*s view that CAE*s proposal lacked
*substantive descriptions* regarding how *CAE will accomplish their SOW
commitments.* CAE was also provided with a list of each of the evaluated
enhancing features, strengths, and [DELETED] weaknesses in its proposal.
CAE Debriefing Slides at 18-30.
In addition, in response to CAE*s protest filed with our Office on October
8, the agency, on October 24 and 30 (prior to the submission of the agency
report), provided our Office and the parties relevant documents under
protective order, including, for example, the awardee*s and protester*s
proposals, individual evaluator worksheets, proposal evaluation reports,
and the BCM.[5]
ANALYSIS
Technical/Management Evaluation of CAE*s Proposal
CAE argues that the agency*s evaluation of proposals under the
technical/management factor was unreasonable. In reviewing protests
against allegedly improper evaluations, it is not our role to reevaluate
proposals. Rather, our Office examines the record to determine whether the
agency*s judgment was reasonable and in accord with the evaluation factors
set forth in the RFP. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1
CPD P: 223 at 4. The protester*s mere disagreement with the agency*s
judgment does not establish that an evaluation was unreasonable. UNICCO
Gov*t Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD P: 134 at 7.
CAE first argues that the agency acted unreasonably in downgrading CAE*s
proposal because of the agency*s evaluated concerns regarding CAE*s
facility plan. The RFP provided relatively detailed information regarding
the facilities to be provided by the contractor. The RFP stated that
facilities could consist of existing or new on-post facilities, and/or
off-post facilities. With regard to on-post facilities, the solicitation
identified three buildings with space available, including the Aviation
Warfighting Simulation Center (AWSC), and stated, for example, that *[i]f
modifications to existing, government owned buildings are required, the
plans for those modifications must be submitted to the government for
approval.* With regard to new on-post facilities, the RFP provided that
*new facilities can be authorized by the government to specifically
support FSXXI Simulation training,* and specified that *[t]he contractor
will construct and own the building, but the land on which the building is
constructed will be leased from the government.* RFP, SSRD at 36. The
agency identified one particular site (referred to as Site 500) as a
potential location for a new on-post facility. Offerors were cautioned,
however, *Fort Rucker does not have authority to authorize
lease/construction of new facilities on-post,* and estimated a *24-month
processing time* for such an authorization, which *represents a worst-case
estimate, but it is not unrealistic based on past experience.* RFP,
attach. 7, Questions and Answers, No. 147.
With regard to off-post facilities, the RFP required that they *be located
within a ten mile radius* from the AWSC on Fort Rucker, and advised
offerors that the successful contractor would be responsible for the
soldiers* transportation to and from the facility, as well as their safety
during transportation and while at the facility. The solicitation also
stated that the contractor would *be responsible for all costs associated
with off post facilities including acquisition of land or buildings,
building modification and/or construction, utilities, building
maintenance, grounds maintenance, janitorial services, telephone service,
internet connections, and administrative and simulation [local area
network] and [wide area network] capabilities and connections.* RFP,
SSRD, at 36-37.
In evaluating CAE*s proposal, the agency found that CAE*s proposed
facility plan provided for the use of space in the AWSC, and the
construction of either a new on‑post building on Site 500 or a new
off-post building. CAE*s proposal provided that the determination as to
whether to proceed with new construction on-post or off-post would be made
after contract award, and that *[t]he determination of which site to use
to go forward can be made quickly based on factors balancing the long term
good, available schedule, and the level of championing that can support
on-post efforts.* AR, Tab A2, CAE Proposal, Technical/Management Volume,
at 25.
The agency found that this aspect of CAE*s proposal constituted a
*significant weakness* because, among other things, CAE*s plan provided
for only 6 months in which to get the new on-post construction at Site 500
approved, rather than the 24 months noted by the agency in the question
and answers provided to the offerors. AR, Tab H, Initial
Technical/Management Proposal Evaluation Report, S: 2, Tab B, at 5; Tab I,
CAE Discussions Letter, encl. 1 at 3. The evaluators also noted that *CAE
proposed several off-post locations,* and that *[t]here was much
discussion* by the agency evaluators *on three of [CAE*s] proposed
locations, as they appear[ed] to actually be on post.* AR, Tab H, Initial
Technical/Management Proposal Evaluation Report, S: 2, Tab B, at 5. The
agency informed CAE during discussions that its *proposed schedule for
construction of a facility on-post . . . was evaluated and found to be a
significant weakness in light of the approximate known time to obtain*
approval for the construction, and that in the agency*s view, CAE*s
construction schedule *presents considerable schedule risk even with the
mitigation plan . . . proposed.* AR, Tab I, CAE Discussions Letter, encl.
1, at 3.
CAE responded by revising its proposal to provide for *a new purpose-built
facility constructed at a site contiguous to Ft. Rucker.* AR, Tab A2, CAE
Revised Proposal, Technical/Management Volume, at 87. CAE asserted in its
revised proposal that its new off-post site selection *eliminates schedule
constraints posed by on-post construction,* and that the facility would be
ready to accept certain simulators 11 months after contact award. Id. at
87, 91. CAE stated that its revised approach *allows the new facility to
become an on-post solution, by limiting access to the contiguous site only
through Fort Rucker and establishing an appropriate boundary to the
surrounding community.* CAE*s proposal also provided, however, that it
*wishe[d] to continue to pursue the use of [on-post] site 500, with the
Facilities IPT [integrated product team], as a parallel effort to the
selected contiguous site.* CAE stated here that *[t]his will allow the
new facility to be constructed closer to the AWSC that is preferred for
reasons of student flow and logistics.* AR, Tab A6, CAE Compendium
Response to Discussions, at 30. The Facilities IPT proposed by CAE was to
be chaired by a CAE *Facility Manager,* and be comprised of certain CAE
and Army personnel. CAE stated that it proposed to *form the Facilities
IPT immediately following contract award to begin discussions about
Facility options which might further enhance [CAE*s] Facility plan.* AR,
Tab A2, CAE Revised Proposal, Technical/Management Volume, at 90.
The agency concluded in evaluating CAE*s final revised proposal under the
technical/management evaluation factor that *CAE*s greatest weakness is
still their facility plan, as it affects so many other items across the
proposal.* AR, Tab K, Final Proposal Evaluation Report, Tab B, at 8.
This was in part due to the agency*s view that CAE*s revised facility plan
was *confusing and ambiguous.* AR, Tab M, BCM, at 9. In this regard, the
agency noted that although CAE had revised its facilities plan in its
final revised proposal, it had failed to amend, among other things, its
proposed integrated master schedule or integrated master plan to reflect
the revisions to its facility plan. AR, Tab K, Final Proposal Evaluation
Report, at 7. That is, CAE*s integrated master schedule and integrated
master plan referenced the approvals or planning necessary to build a new
on-post facility, and made no mention of the planning or approvals
necessary for a new contiguous off-post facility.[6] See AR, Tab A, CAE
Revised Proposal, app. C, Integrated Master Schedule; app. D, Integrated
Master Plan.
With regard to the new off-post facility proposed by CAE, the agency noted
that CAE*s proposed off-post location *has little infrastructure (water,
sewer, phone, etc.) to support such a facility,* that *[t]ime to install
infrastructure would likely have an adverse effect on the facility
timetable,* and that CAE*s facilities plan lacked *any significant
description of steps taken, or to be taken, to deal with numerous
infrastructure issues.* AR, Tab K, Final Proposal Evaluation Report, Tab
B, at 9; Tab M, BCM, at 9.
The record also reflects the agency*s concern with CAE*s plan of pursuing
the construction of a facility on-post at Site 500 *in parallel* with its
plan to consider the construction of a new off-post facility. For
example, the agency expressed concern that CAE*s *approach to *finalizing*
their facilities plan after award places the government at risk for
possible claims of government caused delays if government IPT members
raise issues which could impact the final facilities plan.* The agency
also concluded that CAE*s *indecision on facility location creates great
risk that CAE will not meet its own delivery schedule.* In sum, the
agency determined that *CAE*s facilities plan, coupled with their
aggressive delivery schedule for simulators and training schedule for
aviators, is fraught with risk of delays in training which would severely
impact Ft. Rucker*s need to train aviators with modern simulation
technology.* AR, Tab M, BCM, at 9.
The protester argues that its proposal included a reasonable amount of
information regarding its revised facility plan, and that the agency
should not have been confused by CAE*s revised proposal, contending that
*CAE specifically and unequivocally revised its facility proposal from an
on-[post] facility to an off-[post] facility on land contiguous to Ft.
Rucker.* Protester*s Comments at 19. With regard to its proposed
off-post facility, CAE points out that its revised proposal included an
aerial photograph of its proposed off-post facility location, a facility
layout for its off-post facility, and a construction schedule, and thus
argues that the agency *was on notice that CAE had spent time
investigating in detail the off-[post] properties proposed for the
building and had worked with local authorities.* Protest at 6; see AR,
Tab A2, CAE Proposal, Technical/Management Volume, at 88-91. The
protester also argues that, contrary to the agency*s evaluation, nothing
in the RFP required a proposal to address infrastructure issues that may
affect a particular building site.
With regard to its proposed on-post Site 500 facility, CAE contends that
the agency*s concern regarding the time for approval of such construction
was unfounded because *CAE is highly experienced with constructing flight
simulator facilities around the world, and is intimately familiar with
what is required.* The protester also claims here that *it employs a
number of former high level employees from Ft. Rucker with experience with
accelerating facility construction at Ft. Rucker.* Supplemental Protest
at 6. Finally, the protester argues that the agency*s evaluated concerns
that CAE*s proposed continued pursuit of the on-post Site 500, in addition
to the proposed off-post site are unfounded, given CAE*s proposed pursuit
of *both options in parallel.*[7] Protester*s Comments at 20.
Despite the protester*s disagreement, we cannot find the agency*s
evaluated concerns regarding CAE*s facility plan to be unreasonable or
inconsistent with the RFP. First, we find reasonable the agency*s view
that CAE*s revised facility plan was somewhat confusing. As mentioned
previously, and as conceded by the protester, the integrated master
schedule and integrated master plan included with CAE*s revised proposal
continued to reference the approvals or planning necessary to build a new
on-post facility, and made no mention of the planning or approval
necessary for a new contiguous off-post facility. Given the revised
proposal*s reference to CAE*s proposed use of an off-post site for a
facility, as well as the stated desire to *continue to pursue* the use of
on-post Site 500, the agency reasonably found CAE*s proposal confusing in
this regard. We also cannot find unreasonable the agency*s view that
CAE*s proposed plan of pursuing the use of on-post Site 500 and the
off‑post site *in parallel* for its new-construction facility, and
making a decision sometime after award as to which location will actually
be used, creates risk that the facility will not be available for use in
the timeframe proposed by CAE or required by the solicitation, given the
delay that may be occasioned by CAE*s decision-making process here.
Nor can we find the agency*s concern that CAE*s proposed off-post site for
its facility lacked the infrastructure necessary to support such a
facility unreasonable or inconsistent with the RFP. In this regard, the
protester does not rebut or otherwise challenge the agency*s statement
that the off-post site proposed by CAE is undeveloped and lacks
infrastructure, or the agency*s determination that this lack of
infrastructure may negatively affect CAE*s ability to comply with its
proposed or the solicitation*s mandatory IOC schedules. Contrary to the
protester*s arguments, the agency*s concerns here were consistent with the
technical/management evaluation factor, which provided for an assessment
of the offerors* ability to meet the solicitation*s requirements,
including the construction of any proposed facility.
In sum, we find reasonable the agency*s evaluation of CAE*s facility
plan.[8] Given that CAE has not timely challenged any of the remaining 25
evaluated weaknesses in its proposal, we have no basis to object to the
agency*s evaluation of CAE*s proposal as *[DELETED]* under the
technical/management factor.[9]
CSC*s Proposal*s Compliance with Concurrency Requirement
The protester argues that the agency*s evaluation of CSC*s proposal under
the technical/management factor as *highly satisfactory* with *low*
proposal risk was unreasonable because CSC*s proposal failed to
demonstrate how it would *maintain concurrency of the virtual
simulators.* Supplemental Protest at 2.
As explained by the agency, the *simulator cockpit should look the same as
the actual aircraft,* and *[t]he controls should also respond in a manner
similar to actual aircraft controls.* AR at 32. Because of these
requirements, the SSRD provided that *[c]oncurrency of the [simulators]
must be maintained,* that is, when the actual aircraft are modified, the
simulators must be modified as well. RFP, SSRD, at 9. The RFP (at 84)
instructed offerors to address the concurrency issue in their proposals as
follows:
Describe your approach to provide concurrency and technology upgrades for
the virtual simulators and simulation environment, and to provide updates
to the associated training products and system documentation. Identify
how the concurrency and technology upgrade requirement will be supported
in terms of planning, development, implementation, offerors
Testing/Government RFT [ready for training] accreditation, data
acquisition, relationships/agreements with other members of industry
and/or Government, etc. Describe how you will ensure that concurrency and
technology upgrades to hardware, software, and courseware can be easily
and effectively incorporated throughout the life cycle of the [FSXXI]
simulator system.
CSC*s proposal included a lengthy and detailed discussion of its approach
to maintaining simulator concurrency, included sections describing its
approach to planning, developing, implementing, and acquiring data for
concurrency upgrades. AR, Tab B1, CSC*s Proposal, Technical Management
Written Proposal, at II-41A, 72‑73, 86-89. CSC*s proposal noted,
among other things, that it had *secured initial agreements from aircraft
platform change control program stakeholders,* including two original
equipment manufacturers (OEM), to *participate in the change-control
process for each aircraft platform.* Id. at II-103. In evaluating CSC*s
proposal, the agency found that CSC*s *understanding and planning for
concurrency* constituted a *strength,* explaining that CSC*s proposal
provided a *highly integrated approach to issues such as concurrency.*
AR, Tab K, Final Proposal Evaluation Report, Tab A, at 2, 7.
The protester argues that CSC*s proposal should have been rejected because
it *believes it is physically impossible for CSC to satisfy [the
concurrency] requirement without a data arrangement in place with Boeing
or some other right of access to Boeing*s proprietary OEM data.*[10]
Supplemental Protest at 3. In this regard, the protester has provided a
letter from Boeing*s legal counsel stating that *it is Boeing*s belief
that the Government does not have possession of much of the data that
would be required to design and maintain simulators for the Apache
Longbow,* and that *[w]ithout assistance from the OEM, it is Boeing*s
belief that the Government could not provide another company with data
sufficient to enable that company to design or maintain a simulator that
replicates the Apache Longbow.* The letter adds that *the CSC team has
made no approach to Boeing to even discuss the potential for an agreement
to permit access to Apache Longbow technical data,* and that *[i]n the
future event that CSC or an associated team member would approach Boeing
to obtain such technical and performance data, Boeing would be strongly
disinclined as it has in the past to provide such information to a
competitor.* Protester*s Comments, exh. 4, Letter from Boeing*s Counsel
to CAE (Nov. 20, 2003).
The solicitation, however, did not include any requirement for offerors to
provide, or otherwise demonstrate that they had, agreements with the OEM
of the relevant aircraft in place prior to award.[11] Rather, the
solicitation, as set forth above, instructed offerors that they were to
describe their approach to providing concurrency during performance of the
contract. Accordingly, CAE*s argument that CSC*s proposal should have
been rejected by the agency is without merit as there simply is no
requirement in the solicitation that an offeror have advance agreements
with the relevant OEMs. See Orbital Technologies Corp., B-281453 et al.,
Feb. 17, 1999, 99-1 CPD P: 59 at 7.
The protester maintains in any event that because CSC did not have an
advance agreement with Boeing, CSC*s proposal could not reasonably have
been evaluated as posing *low* proposal risk under the
technical/management factor. Again, we disagree. The fact that CSC had
not reached an advance agreement with Boeing, by itself, does not render
unreasonable the agency*s judgment that CSC*s proposal posed a *low* risk
under the technical/management factor, given that, as mentioned above,
CSC*s proposal otherwise included a detailed explanation of its approach
to maintaining simulator concurrency, and provided that it had *secured
initial agreements from aircraft platform change control program
stakeholders,* including two aircraft OEMs.
CSC*s Proposal*s Compliance with Optimization Requirement
The protester contends that the agency*s evaluation of CSC*s proposal
under the technical/management factor *[v]iolates the RFP*s Optimization
Requirement.* Protester*s Comments at 57; see Supplemental Protest at
9-10.
As indicated, offerors were requested by the RFP to *define their training
solution, the analysis they conducted to develop their training solution,
and their program management concept.* Contracting Officer*s Statement at
18. The solicitation did not specify the quantities of the differing
simulators to be provided by the contractor in order to accomplish the
training; rather, it required offerors to identify the quantity of
simulators proposed, and, among other things, explain how the quantities
proposed were determined, and how the training estimated would be
accomplished with the quantities proposed. RFP at 83; SSRD, at 32.
Appendix B to the RFP*s SSRD explains in this regard as follows:
The requirements for numbers and types of simulators were intentionally
structured to allow maximum flexibility on the part of the contractor to
determine the most cost effective solution for the contractor and
government. The government will pay for simulator time regardless of how
many simulators there are. It is the contractor*s responsibility to
provide the number and type of simulators to meet the stated training
requirement, and to the contractor*s advantage to provide the fewest
simulators required. Again, it is the contractor*s responsibility to
ensure that the number and type of simulators and hours of availability
are provided to meet the training requirement within the training day
constraints identified [elsewhere in the solicitation].
RFP, SSRD, app. B, at B-16.
CAE and CSC proposed nearly identical numbers of two types of simulators
referenced in the RFP. Specifically, CAE proposed to provide 19 TH-67
simulators and 21 AAVSs, while CSC proposed to provide 20 TH-67 simulators
and 19 AAVSs. AR, Tab A2, CAE Proposal, Technical/Management Volume, at
56, 68; Tab B2, CSC Proposal, Technical Management Written Proposal, at
29, 46. However, CSC also proposed to provide 18 *Reconfigurable
Collective Training Devices (RCTDs) to accomplish collective training
requirements.* AR, Tab A2, CAE Proposal, Technical/Management Volume, at
46.
The agency viewed the RCTDs proposed by CSC as a *strong enhancement* to
CSC*s proposal. AR at 35. In this regard, the agency noted, in
evaluating CSC*s proposal as *highly satisfactory* under the
technical/management factor, that the RCTDs proposed by CSC *allow[] for
the expansion of collective virtual simulation over the next two decades
with few foreseeable problems in scheduling,* and *eliminate[] potential
for conflicts when scheduling assets for collective and individual
training, and allows for the training of an entire battalion task force of
any mix of aircraft with no interference with individual training.* AR,
Tab K, Final Proposal Evaluation Report, Tab A, at 5; Tab M, BCM, at 5.
In pursuing this aspect of its protest, CAE points out that in response to
an industry question regarding the scheduling of courses or exercises to
optimize the use of simulators, the agency responded as follows:
It is not in the Government*s or Contractor*s advantage to overestimate
numbers of simulators and end up with significant available, but unused
simulator time. It is the Government*s expectation that the Contractor
will propose, based on a thorough analysis, the most cost and training
effective solution with minimum second and third order effects on other
resources.
RFP, attach. 7, Questions and Answers, No. 68. The protester contends
that this statement indicated that *the government was placing a premium
on efficient use of resources, and wanted proposals that would minimize
excess simulators, down time and extra simulators using excess space.*
Supplemental Protest at 9. The protester points out that the agency
*appeared to concur . . . that CAE*s 40 simulator approach met the RFP*s
training requirements,* and concludes that because of this, the agency*s
evaluation of CSC*s proposal was unreasonable in this regard because
*CSC*s solution, with 17 additional simulators, does not minimize
simulator downtime.* Supplemental Protest at 10; Protester*s Supplemental
Comments at 55.
First, we agree with the agency that the RFP did not include an
*optimization requirement* as argued by the protester. Rather, the RFP
read as a whole requested that offerors propose, among other things, a
training solution as well as the number of simulators needed to accomplish
the training based upon the solution proposed. The solicitation did not
restrict the number of simulators to be proposed, except to the extent
that the number of simulators proposed was to be consistent with the
offeror*s approach to accomplishing the training required.
The record reflects that the number of simulators proposed by CAE was
considered to be adequate, while the greater number proposed by CSC (at a
presumably greater cost) was found to be an enhancing feature of CSC*s
proposal. In our view, there is nothing unreasonable or impermissible
with regard to the offerors* somewhat differing approaches to
accomplishing the training requirements, nor the agency*s evaluation
thereof. The differing approaches appear to reflect nothing more than the
offerors* differing business judgments in the context of this best-value
procurement.[12]
Performance Risk/Past Performance Evaluation
CAE argues that the agency*s evaluation of CSC*s proposal as *very low*
risk under the performance risk/past performance evaluation factor was
unreasonable. Specifically, the protester argues that the agency should
have downgraded CSC*s proposal here because of *poor performance on a
previous related contract to provide AVCATT (Aviation Combined Arm
Tactical Trainer-Advanced Reconfigurable Manned Simulator) simulators.*
Supplemental Protest at 8.
The agency responds that CAE has not shown that the agency*s past
performance evaluation was unreasonable, and points out that, in any
event, CAE*s proposal was also evaluated as having *very low* risk under
the performance risk/relevant past performance factor, even though there
have been *significant delays on CAE*s contract with [the agency] for the
Apache Combat Simulator Upgrade* that *CAE did not mention in its past
performance submission,* so that CAE was not prejudiced by the agency*s
asserted failure to adequately consider CSC*s performance on the AVCATT
contract. AR at 34. The agency also points out with regard to prejudice
that *[e]ven if we hypothetically assume that CSC*s past performance
rating should have been *worse,* the significant difference in
technical/management ratings would have led to the same conclusion--that
CSC provided the best value to the Government.* Agency Supplemental
Report at 40.
The protester responds that in its view its performance on the Apache
Combat Simulator Upgrade contract mentioned above is less relevant to this
contract than CSC*s AVCATT contract, but does not substantively respond to
the agency*s position in its supplemental report or otherwise explain how
CAE was prejudiced by the agency*s allegedly unreasonable evaluation in
this regard.
Competitive prejudice is necessary before we will sustain a protest; where
the record does not demonstrate that the protester would have had a
reasonable chance of receiving award but for the agency*s actions, we will
not sustain a protest, even if deficiencies, such as an unreasonable or
unequal evaluation of proposals, is found. Leisure-Lift, Inc.,
B-291878.3; B-292448.2, Sept. 28, 2003, 2003 CPD P: __ at 10; Metropolitan
Interpreters & Translators, B-285394.2 et al., Dec. 1, 2000, 2001 CPD P:
97 at 9.
Given CSC*s proposal*s significantly higher rating of *highly
satisfactory* with *low* proposal risk in comparison to CAE*s proposal*s
rating of *marginal* with *medium* risk under the most important
technical/management factor, the fact that *relevant past performance* was
one of three subfactors to the *performance risk/past performance
evaluation factor,* and that the record evidences that CAE had similar
performance problems to those allegedly had by CSC and received, as did
CSC, a past performance rating of *very low* risk, we fail to see any
reasonable possibility that the protester was prejudiced by the agency*s
actions concerning its failure to consider CSC*s alleged problems under
the AVCATT contract.
The protests are denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The program is known as the Flight School XXI (FSXXI) simulation
services program.
[2] The simulators provided will be for the Longbow, Kiowa Warrior,
Chinook, Blackhawk and TH-67 training aircraft.
[3] The integrated master plan was to identify key events critical to the
simulation program*s success. RFP at 87. The integrated master schedule
was to identify activities and tasks sufficient to *demonstrate a detailed
understanding* of the program and that implement the master plan. RFP at
86. The requirements traceability matrix was to cross‑reference
each requirement set forth in the simulation services requirements
document (SSRD) and statement of objectives (SOO) with the offeror*s
proposed SOW. RFP at 89. The SOO provided *the Government*s overall
objectives for [the] solicitation,* RFP at 79, and the SSRD sets forth the
agency*s stated requirements for the FSXXI program.
[4] Proposals were evaluated under the technical/management and SDB
participation/small business subcontracting plan factors as *outstanding,*
*highly satisfactory,* *satisfactory,* *marginal,* or *unsatisfactory,*
and under the technical/management factor were assigned proposal risk
ratings *which address[] potential impacts of proposed processes,
methodologies, approaches and concepts on performance, schedule and price*
of *low,* *medium,* or *high.* The proposals were evaluated under the
performance risk/past performance factor as *very low,* *low,* *medium,*
*high,* *very high,* or *unknown.* AR, Tab M, BCM, at 3-4.
[5] CAE*s receipt of these documents led to CAE*s filing of a supplemental
protest on November 3.
[6] For example, CAE*s integrated master plan continued to state that CAE
*has concluded that the FSXXI solution best fits into a new purpose built
facility constructed on Ft. Rucker and modifications to the Aviation
Warfighting Simulation Center (AWSC).* AR, Tab A, CAE Revised Proposal,
app. D, Integrated Master Plan, at 21.
[7] CAE also argues for the first time in its comments on the agency
report that the agency*s identification of on-post Site 500 as a possible
location for a facility during the solicitation process was inappropriate,
given the agency*s evaluated concerns with CAE*s proposed use of that
site, and that the agency*s evaluation of its and CSC*s facility plans
evidences unequal treatment. Our Bid Protest Regulations provide that
protests which are not based upon alleged solicitation improprieties must
be filed not later than 10 days after the basis of protest is known or
should have been know (whichever is earlier). 4 C.F.R. S: 21.2(a)(2)
(2003). The timeliness of a specific basis of protest raised after the
filing of the initial protest bases depends upon the relationship the
later-raised bases bear to the initial protest. Where the later raised
bases present new and independent grounds for protest, they must
independently satisfy our timeliness requirements; conversely, where the
later raised bases merely provide additional support for an earlier,
timely raised protest basis, we will consider the later-raised arguments.
Vinnell Corp., B-270793; B-270793.2, Apr. 24, 1996, 96-1 CPD P: 271 at 7.
In our view, CAE*s arguments here are distinct from CAE*s protest that the
evaluation of its facility plan was unreasonable because, in CAE*s view,
its proposal included a reasonable amount of information regarding its
revised facility plan. Accordingly, because CAE was or should have been
aware of each of these arguments from its receipt on October 24 and 30 of
relevant documents from the agency, its arguments here, raised for the
first time in its comments on the agency report filed with our Office on
November 25, are untimely and will not be considered.
[8] The protester also complains with regard to the evaluation of its
facilities plan that the record reflects that one member of the evaluation
panel *had a disproportionate impact on the outcome of the panel*s
evaluation.* Protester*s Comments at 10; see Supplemental Protest at
6-7. The selection of individuals to serve as proposal evaluators is a
matter within the discretion of the agency; accordingly, we will not
review allegations concerning the qualifications of evaluators or
composition of evaluation panels absent a showing of possible fraud,
conflict of interest, or actual bias on the part of evaluation officials.
Solid Waste Integrated Sys. Corp., B‑258544, Jan. 17, 1995, 95-1 CPD
P: 23 at 6. No such showing has been made here.
[9] As mentioned previously, CAE was provided with a list of the [DELETED]
weaknesses at its debriefing. In its initial protest to our Office, CAE
challenged the agency*s determination with regard to [DELETED] of the
weaknesses. The agency responded in detail to these CAE arguments, and
the protester did not respond to the agency*s position in either its
comments or its supplemental comments on the agency reports. Accordingly,
we consider CAE to have abandoned this aspect of its protest. Uniband,
Inc., B-289305, Feb. 8, 2002, 2002 CPD P: 51 at 5 n.3.
CAE argues for the first time in its comments on the agency report that
the agency*s identification of certain other weaknesses in CAE*s proposal,
regarding, for example, gunnery tables, digital and paper maps, and the
simulators* capability to play back the training session, was unreasonable
and reflected unequal treatment with regard to the agency*s evaluation of
CSC*s proposal. In response to the agency*s position that these arguments
are untimely, the protester points out that in its initial protest to our
Office it generally asserted *[o]n information and belief* that the agency
evaluated CAE*s and CSC*s proposals *inconsistently,* and that because of
this, its specific arguments alleging unequal treatment in its comments,
filed with our Office on November 25, are timely. Protest at 2;
Protester*s Supplemental Comments at 8. We disagree. Presenting a
general allegation in an initial protest does not render timely
subsequently submitted specific examples of the alleged general flaws in a
procurement. Sierra Military Health Servs., Inc.; Aetna Gov*t Health
Plans, B-292780 et al., Dec. 5, 2003, 2004 CPD P: ___ at 13 n.9; see
LeBoeuf, Lamb, Greene & McRae, B-283825; B-283825.3, Feb. 3, 2000, 2000
CPD P: 35 at 11-12. Accordingly, because the protester received the
documents relevant to its protest on October 24 and 30, the specific
examples of alleged unequal treatment, raised by protester for the first
time on November 25, are untimely.
[10] Boeing is the OEM for the Longbow aircraft and is teamed with CAE for
this acquisition.
[11] As pointed out by the agency, CAE does not have such agreements in
place with certain of the OEMs of other relevant aircraft. AR at 33-34.
[12] CAE argues for the first time in its comments on the agency report
that the agency favorably evaluated CSC*s proposal with regard to the
RCTDs proposed because the agency could use the RCTDs *to cross subsidize*
another agency contract. The protester complains that this constitutes a
*hidden award criterion.* Protester*s Comments at 55-57. The agency
argues that this CAE argument is untimely because here too CAE received
the documents relevant to its protest on October 24 and 30, and that the
protester*s argument here thus should have been raised in its supplemental
protest to our Office. In response, the protester, while conceding that
this argument is based on those documents, contends that this allegation
*simply helps to make sense of the old allegation* regarding the purported
*optimization requirement.* Protester*s Supplemental Comments at 5. In
our view, CAE*s argument that the agency favorably considered the number
of simulators proposed by CSC because the agency could use the simulators
to support another agency contract provides no support for, and is
distinct from, CAE*s argument that the agency*s evaluation was
inconsistent with the RFP*s purported *optimization requirement.* See
Vinnell Corp., supra. Accordingly, this protest basis, raised by
protester for the first time in its comments to our Office filed on
November 25, is untimely.