TITLE:  Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005
BNUMBER:  B-294896.2; B-294896.3; B-294896.4
DATE:  January 21, 2005
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   Decision

   Matter of:   Cooley/Engineered Membranes; GTA Containers, Inc.

   File:            B-294896.2; B-294896.3; B-294896.4

   Date: January 21, 2005

   Thomas L. McGovern, III, Esq., Michael J. Vernick, Esq., and Richard W.
Arnholt, Esq., Hogan & Hartson, for Cooley/Engineered Membranes; and
Steven M. Masiello, Esq., Stephen M. Sorett, Esq., and Phillip R. Seckman,
Esq., McKenna Long & Aldridge, for GTA Containers, Inc., the protesters.

   Richard D. Lieberman, Esq., and Karen R. O*Brien, Esq., McCarthy, Sweeney
& Harkaway, for MPC Containment Systems, Ltd., an intervenor.

   Clarence D. Long, III, Esq., and Paul S. Davison, Esq., Department of the
Air Force, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest challenging agency*s evaluation of awardee*s proposal of an
alternative test method to determine compliance with technical
requirements is sustained where the record shows that the alternative test
proposed by the awardee is not comparable to the tests required by the
specifications and, thus, the agency lacked a reasonable basis to conclude
that the awardee*s proposal was technically acceptable.

   2.  Protests challenging agency*s evaluation of offerors* past performance
are denied where the record reflects a reasonable evaluation and the
offerors were given adequate opportunities to address negative past
performance information during discussions.

   DECISION

   Cooley/Engineered Membranes and GTA Containers, Inc. protest the award of
a contract to MPC Containment Systems, Ltd. under request for proposals
(RFP) No. FA8518-04-R-71516, issued by the Department of the Air Force for
collapsible fuel containment bladders.  Cooley and GTA each challenge the
Air Force*s evaluation of offerors* proposals and the source selection
decision.

   We sustain the protests in part and deny them in part.

   BACKGROUND

   The RFP was issued on May 28, 2004, as a total small business set-aside,
and anticipated the award of a fixed-price,
indefinite-delivery/indefinite-quantity contract for a 1-year base period
and up to four 1-year option periods.  The RFP sought proposals for two
sizes of collapsible fuel containment bladders -- 50,000 gallon and
210,000 gallon capacities -- for use in the storage of various types of
aircraft fuels.

   The RFP provided for award to the offeror who provided a technically
acceptable proposal that represented the *best value* to the agency based
on an assessment of price, proposal risk, and past performance.  RFP S
M-900, P A, at 64.  The proposal risk factor and the past performance
factor were of equal importance and, when combined, were *significantly
more important than [the] price* factor.  Id.

   Offerors were required to demonstrate technical acceptability based on the
following definitions:

   a.  A technically acceptable proposal shall meet the requirements of
paragraph 3.3.4 *Coatings* to ensure that they are suitable for use with
hydrocarbon fuels conforming to MIL-DTL-5624, MIL-DRL-25524E,
MIL-DTL-83133 and AA52557 and use temperatures to 170DEGF.

   b.  A technically acceptable proposal shall provide an adequate method of
bonding the seams and fittings to attain the required strengths as
specified in Tables I, II, III and IV.

   RFP S M-900, P B.1, at 65.

   The purchase description, attached to the RFP, outlined the technical
requirements for the fuel bladders, including Tables I-IV, which set forth
strength requirements for the bladder fabric coating, bladder fabric,
bladder seams, and bonded fittings. 
RFP Purchase Description, at Tables I-IV.  The tables also prescribed
tests for determining compliance with the strength requirements.  Id.  The
tests are described in the purchase description and by reference to
American Society for Testing and Materials (ASTM) protocols.  Id.  The
contractor is required to provide first articles for both the 50,000
gallon and 210,000 gallon sizes, to conduct first article tests (FAT)
consistent with the purchase description, and to provide the agency with
the test results.  RFP at 4-10.

   The agency received proposals from MPC, Cooley, GTA, and a fourth
offeror.  After initial technical evaluations, the agency found all
offerors* proposals to be technically unacceptable.  Agency Report (AR),
Tab 11, Initial Technical Evaluation Report, at 1.  The agency conducted
discussions with each of the offerors and received revised proposals.  The
proposals of MPC, Cooley and GTA were each found technically acceptable
and the remaining offeror*s proposal was found technically unacceptable. 
AR, Tab 11, Final Technical Evaluation Report, at 1.  For the three
offerors with technically acceptable proposals, the agency evaluated the
proposals as follows:

   +------------------------------------------------------------------------+
|A                  |MPC               |Cooley          |GTA             |
|-------------------+------------------+----------------+----------------|
|Risk               |       Low        |      Low       |      Low       |
|-------------------+------------------+----------------+----------------|
|Past Performance   |Exceptional/      |Satisfactory/   |Satisfactory/   |
|                   |                  |Confidence      |Confidence      |
|                   |High Confidence   |                |                |
|-------------------+------------------+----------------+----------------|
|Evaluated Price    |$49,244,710       |$[deleted]      |$[deleted]      |
+------------------------------------------------------------------------+

   AR, Tab 13, Source Selection Decision, at 6.

   The agency concluded that although MPC*s proposal offered [deleted] MPC*s
*exceptional/high confidence* past performance evaluation merited its
selection for award.  Id.  The contract was awarded to MPC on September
30, 2004.  AR, Tab 14, Contract, at 1.  Following their respective
debriefings, GTA and Cooley filed protests of the award to MPC.

   DISCUSSION

   Cooley alleges that the agency improperly determined that MPC*s proposal
was technically acceptable, and that the agency improperly evaluated MPC*s
past performance record and proposal risk.  GTA also alleges that the
agency improperly evaluated MPC*s past performance record and proposal
risk, and further argues that the agency improperly evaluated its own past
performance and failed to provide it an opportunity for meaningful
discussions.

   In reviewing protests challenging an agency*s evaluation of proposals, we
will not substitute our judgment for that of the agency regarding the
merits of proposals; rather, we will examine the agency*s evaluation only
to ensure that it was reasonable and consistent with the solicitation*s
evaluation criteria and with procurement statutes and regulations.  Cerner
Corp., B-293093, B-293093.2, Feb. 2, 2004, 2004 CPD P 34 at 10.  As with
any evaluation review, our primary focus is whether the record supports
the agency*s conclusions.  Innovative Logistics Techniques, Inc.,
B-275786.2, Apr. 2, 1997, 97-1 CPD P 144 at 9.

   MPC*s Technical Acceptability

   Regarding Cooley*s contention that MPC*s proposal was technically
unacceptable, our review of this protest allegation begins with the
detailed technical specifications set forth in the RFP evaluation criteria
and the purchase description.  Offerors were required to *provide an
adequate method of bonding the seams and fittings to attain the required
strengths as specified in Tables I, II, III and IV.*  RFP S M-900, P B.1,
at 65.  The RFP required the contractor to provide first articles for each
fuel bladder size, and to conduct and submit test results that demonstrate
that the first articles meet the requirements of the purchase description,
including Tables I-IV.  RFP
at 4-10.  Table IV identifies strengths that the bonded fittings must meet
during testing, as well as methods for conducting the tests.  The tests
listed in Table IV are contained in the purchase description
specifications and require the evaluation of samples cut from the fittings
and samples of the metals used for the fittings and their bonds to the
bladder fabrics.  RFP Purchase Description, PP 4.5.2.17-19.  These tests
involve clamping samples in mechanical jaws and subjecting them to stress
as measured in pounds/inch, to measure the strength of the bonds between
the fittings and the bladder fabric, the dead load shear resistance, and
the peel adhesion strength of the coated fabric to the metal used for the
fittings.  The samples are tested to determine their strengths as
manufactured, followed by tests performed on samples that have been
immersed for various periods of time in the fuels to be used in contract
performance.  Table IV identified different strength requirements for each
fuel bladder size, as well as different strength requirements for samples
with and without fuel immersion.

   The agency informed MPC during discussions that its initial proposal did
not *provide a technically acceptable method of bonding the fittings to
the fabric bladder to achieve the strengths required in table IV as
required by [RFP] clause M-900,
item B. (1) b.*  AR, Tab 10C, MPC Evaluation Notice (EN) M-TECH-01, at 4. 
In response, MPC provided information regarding its fittings and further
explained that the test methods outlined in Table IV were inapplicable to
MPC*s proposed product due to MPC*s fitting method.  AR, Tab 10C, MPC
Evaluation Notice Response, at 1.  In lieu of the Table IV test methods,
MPC stated that it would use an *alternative pressurized soap bubble
test.*  Id.  The agency concluded that *MPC*s EN response provided a
technically acceptable method of bonding the fittings to the fabric
bladder to achieve the strengths required in Table IV.*  AR, Tab 11, Final
Technical Evaluation Report, at 3-4. 

   Cooley argues that MPC*s response (and therefore its proposal) was
unacceptable because MPC failed to address the detailed testing
requirements set forth in Table IV of the purchase description, which
established the required strengths for bonded fittings.  The agency
contends, however, that *[b]ased on [MPC*s] design, and their proposed
alternate test method, [MPC] will meet the requirements* of the purchase
description in Tables I-IV.  Supplemental Contracting Officer*s Statement
at 4.

   The agency argues that the tests identified in Table IV are not *the
ultimate goal,* but rather are a way of demonstrating that the *critical
requirement* of meeting the strengths in Table IV is satisfied. 
Supplemental Memorandum of Law at 8.  Thus, the agency contends, an
alternative test, such as the soap bubble test, as proposed by MPC, is
acceptable if, as the result of the test, MPC is able to demonstrate
compliance with the Table IV strength requirements.[1]  Id.  The agency,
however, did not evaluate the acceptability of MPC*s alternative soap
bubble test and did not address in its technical evaluation whether the
soap bubble test would be appropriate for determining whether the strength
tests in Table IV were met.  Id. 

   MPC explains that the test methods set forth in Table IV are inappropriate
for its proposed method of [deleted] because the design of MPC*s
[deleted].  MPC*s Supplemental Comments at 4.  MPC acknowledges that,
given the design of its product, *some other test must be used to
determine* whether the product meets the strengths in Table IV.  Id.  As
described by MPC*s technical consultant in its supplemental comments,
[deleted].  Id.[2] 

   The record clearly shows, however, that the soap bubble test will not
demonstrate compliance with the strength requirements because that test
does not measure the strength of the bonding between the fittings and the
bladder fabric, but merely determines whether the bladder leaks air after
inflation.  RFP Purchase Description, P 4.5.2.1.  As evidenced by the
purchase description and as described by MPC*s technical consultant, the
leak test does not evaluate the strength of the bond between the fittings
and the fabrics with specific pounds/inch loads exerted on the samples as
contemplated by Table IV*s strength requirements and the required tests
contained in the specifications and referenced in the table.  At best, the
soap bubble test will determine whether, after inflation with air, the
tanks leak at the areas where the fittings are bonded to the fabric. 
Additionally, the soap bubble test, as described in the purchase
description and by MPC, does not involve subjecting the product sample to
fuel immersion as required by the tests set forth in Table IV; thus, no
information will be provided regarding the strengths that samples must
demonstrate after immersion in the fuels.  Consequently, since MPC*s
revised proposal fails to reasonably address the test requirements, we
find that the agency improperly determined that MPC*s proposal was
technically acceptable and we sustain this basis of Cooley*s protest.[3]

   Past Performance Issues

   GTA argues that the agency improperly evaluated its past performance
record as meriting only a *Satisfactory/Confidence* rating, and further
failed to provide it an opportunity for meaningful discussions. 
Additionally, Cooley and GTA each argue that the agency improperly
evaluated MPC past performance record as meriting an *Exceptional/High
Confidence* rating.

   The evaluation of past performance, including the agency*s determination
of the relevance and scope of an offeror*s performance history to be
considered, is a matter of agency discretion, which we will not find
improper unless unreasonable, inconsistent with the solicitation criteria,
or undocumented.  Family Entm*t Servs., Inc., d/b/a/ IMC, B-291997.4, June
10, 2004, 2004 CPD P 128 at 5. 

   GTA argues that the agency improperly relied upon negative past
performance information regarding its 210,000-gallon fuel bladder contract
with the Army Tank-Automotive and Armaments Command (TACOM) because that
information was unreliable and was not sufficiently documented in the
record.  The record shows that the agency received an initial past
performance reference from TACOM, which was supplemented with additional
information concerning GTA*s difficulties in performing the FATs for that
contract.  AR, Tab 8B, GTA Past Performance Reference for Support IPDS, at
2-3.  The supplemental information was based on a conversation with a
TACOM point of contract and was recorded in handwritten notes by the
agency performance risk assessment group (PRAG) chair.  Id.; Second
Supplemental Agency Report at 1.  The details of the conversation, its
date, and the identity of the TACOM source are documented in the
evaluation record and, in our view, provided a reasonable basis for the
agency*s evaluation of GTA*s past performance.

   GTA additionally argues that it was not given an adequate opportunity to
address the negative TACOM contract past performance information during
discussions.  The record shows, however, that GTA was explicitly told
during discussions that the agency had received negative information
regarding the performance of its 210,000 gallon fuel bladder contract. 
Specifically, GTA was told that *210k gallon fuel bladder:  The respondent
indicated you were experiencing some problems with the First Article.* 
AR, Tab 10B, GTA EN G-PR-2, at 1.  GTA was also provided a summary that
stated *performed first article test 3 times and rejected all three.*  AR,
Tab 10B, GTA Briefing Slides, at 2. 

   When conducting discussions, an agency must advise offerors of
deficiencies, significant weaknesses, and adverse past performance
information to which the offeror has not yet had an opportunity to
respond, and must afford offerors an opportunity to revise their proposals
to fully satisfy the agency*s requirements.  Federal Acquisition
Regulation S 15.306(d)(3).  Clearly, based on the discussion here, GTA was
aware that the agency had received negative past performance information
concerning the TACOM contract and that the information received by the
agency was characterized as a FAT *failure.*  GTA, in fact, responded with
a discussion of its performance on the TACOM contract, explaining
difficulties in performing the FAT requirements and its efforts to correct
the various problems.  AR, Tab 10B, GTA EN Response G-PR-2, at 1-2.  Based
on this record, we find that the agency conducted meaningful discussions.

   With regard to MPC*s proposal, GTA argues that the agency failed to
consider alleged negative information regarding MPC*s past performance on
a 200,000 gallon fuel bladder contract with the United States Central
Command Air Forces (CENTAF).  GTA argues that MPC should have been
evaluated on the CENTAF contract, which GTA alleges has been marred by
negative performance.  The agency states, however, that it was aware of
the existence of the contract itself, but determined that because MPC had
not yet undertaken performance of that contract, there was nothing for the
agency to evaluate.  Contracting Officer*s Statement at 9.  GTA has failed
to demonstrate that there was negative information that the agency knew,
or should have known, regarding MPC*s performance and thus we conclude
that there is no basis to challenge the agency*s evaluation of MPC*s past
performance.

   Cooley argues that the agency unreasonably evaluated MPC*s past
performance because MPC provided only three references, instead of what
Cooley argues is a four-reference minimum set forth in the RFP.  A plain
reading of the RFP, however, demonstrates that offerors were not required
to provide a minimum of four past performance references.  The RFP stated
as follows:

   Offerors shall complete a separate *FACTS Sheet* for each active or
completed contract (with preferably at least one year of performance
history) in the past [ten] years, that the offeror considers relevant in
demonstrating its ability to perform the proposed effort.  If the total
number of such contracts exceeds four (4), the offeror shall address its
four (4) most relevant contracts. 

   RFP S L-900, P d.1, at 53.

   The plain language of the RFP does not require that offerors furnish a
minimum number of past performance references.  Accordingly, there is no
basis to find that the agency improperly evaluated MPC*s proposal based on
MPC*s submission of only three past performance references.[4]

   Finally, we find no merit to either protester*s arguments that the
agency*s evaluations of their respective past performance were
inconsistent with the agency*s evaluation of MPC*s past performance.  To
the extent that Cooley and GTA disagree with the agency*s conclusions,
their disagreement does not render the evaluations unreasonable.  Kathryn
Huddleston & Assoc., Ltd., B-294035, July 30, 2004, 2004 CPD P 142 at 2.

   CONCLUSION

   Based on the record, we find that the agency unreasonably determined that
MPC*s proposal was technically acceptable and sustain Cooley*s protest of
the agency*s evaluation of MPC*s proposal.  In light of our conclusion
that the evaluation was flawed in this regard, we need not address the
protesters* arguments regarding the evaluation of the proposal risk factor
and the best value determination, since the selection of MPC cannot
stand.  The balance of the protest allegations are denied.[5]

   RECOMMENDATION

   From the record, it is not clear whether the agency is willing to accept a
product that does not comply with the testing requirements set forth in
Table IV, since the agency appears to believe that the leak test meets the
requirements of the purchase description.  Supplemental Contracting
Officer*s Statement at 4.  Accordingly, we recommend that the agency first
determine what testing requirements in Table IV are necessary to meet the
agency*s needs.  If the solicitation terms do not express the agency*s
actual requirements, then the agency should amend the solicitation, obtain
revised proposals, and make a new source selection decision.  If an
offeror other than MPC is selected, we recommend that the agency terminate
the contract with MPC and award the contract to the successful offeror. 
If the solicitation terms are appropriate, we recommend that the agency
terminate MPC*s contract and make award to the technically acceptable
offeror whose proposal represents the best value under the RFP*s
evaluation scheme.  We further recommend that the agency reimburse Cooley
the reasonable costs, including reasonable attorneys* fees, with respect
to the issue sustained in this decision.  Cooley*s certified claim for
costs, detailing the time expended and the costs incurred on this issue,
must be submitted to the agency within 60 days of receiving this
decision.  Bid Protest Regulations,
4 C.F.R. S 21.8(f)(1) (2004).

   The protests are sustained in part and denied in part.

   Anthony H. Gamboa

   General Counsel

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

   [1] Although MPC did not specifically style its proposal as an alternative
to, or deviation from, the RFP, we note that the RFP did allow offerors to
take exception, at their own risk, to the terms of the RFP.  In this
regard, the RFP stated that *Volume I will consist of the completed and
signed RFP with a cover letter delineating any exceptions taken to the RFP
terms and conditions.  However, offerors are cautioned that any
noncompliance with the terms and conditions of the RFP may cause their
proposal to be determined unacceptable.*  RFP S L-900, P b,
at 52.

   [2] MPC*s reference to the *Air leakage* test confirms that its proposed
alternative test is essentially a test that is already required under the
purchase description.

   [3] Cooley raises several other protest grounds challenging the agency*s
conclusion that MPC*s proposal was technically acceptable.  We find that,
aside from the requirements at Table IV as discussed above, Cooley*s
disagreement with the agency regarding the adequacy of MPC*s proposal does
not provide a basis to challenge the award to MPC and, thus, we deny these
protest grounds.  For example, Cooley alleges that MPC*s proposal was
technically unacceptable because MPC did not provide adequate data to
support its proposed technical approach.  This argument is without merit
as the RFP was specifically amended to delete the requirement for test
data.  RFP amend. 1, at 2.  Cooley also argues that its own test of the
fabric it believes MPC intends to use in contract performance demonstrates
that MPC*s fabric will not meet the RFP strength requirements and that a
letter in the GTA proposal regarding [deleted] provide the coated bladder
fabric, should have put the agency on notice that the MPC fabric was not
ready for production.  Cooley*s arguments on both these counts lack merit
as both are based on mere supposition.  In this regard, Cooley does not
cite any evidence establishing that the material it tested or the material
that [deleted] may provide to GTA is the same material that MPC plans to
use in the performance of the contract.  Accordingly, we deny these
grounds of protest.

   [4] Cooley notes that the PRAG report discusses the RFP as requiring four
past performance references.  To the extent that the PRAG report conflicts
with the terms of the RFP, such a conflict must be resolved in favor of
the stated RFP, as the evaluation requirements set forth in a solicitation
take precedence over an internal agency evaluation document.  Eccles
Assoc., Inc.; Deloitte Touche Tohmatsu ILA Group Ltd., B- 260486, et al.,
Oct. 17, 1995, 95-2 CPD P 179 at 7.

   [5] The protesters have alleged several other grounds of protest, in
addition to the technical acceptability and past performance issues
discussed above.  MPC also raises several concerns that Cooley is not an
interested party to pursue the protest.  We have reviewed all of these
issues and do not find any to have merit.