TITLE: B-295126.5; B-295126.6, Engineered Electric Company d/b/a/ DRS Fermont, December 7, 2007
BNUMBER: B-295126.5; B-295126.6
DATE: December 7, 2007
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B-295126.5; B-295126.6, Engineered Electric Company d/b/a/ DRS Fermont, December 7, 2007

   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: Engineered Electric Company d/b/a/ DRS Fermont

   File: B-295126.5; B-295126.6

   Date: December 7, 2007

   David Z. Bodenheimer, Esq., and Richard W. Arnholt, Esq., Crowell & Moring
   LLP, for the protester.

   David T. Ralston, Esq., Philip A. Nacke, Esq., and Frank S. Murray, Esq.,
   Foley & Lardner LLP, for Onan Corporation, an intervenor.

   Brian E. Toland, Esq., Michael G. Skennion, Esq. and William J. Kampo,
   Esq., U.S. Army Materiel Command, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Allegation that agency misevaluated proposals is denied where record
   supports agency's evaluation regarding merits of firms' proposals and
   performance of prototypes furnished during earlier phase of acquisition.

   2. Allegation that agency engaged in unequal discussions is denied where
   record shows that discussions were appropriately tailored to firms'
   respective proposals.

   3. Allegation that agency engaged in misleading discussions is untimely
   where protester was aware during discussions that agency's questions were
   inconsistent with solicitation requirements, but did not raise the
   assertion until more than 10 days later.

   DECISION

   Engineered Electric Company d/b/a DRS Fermont protests the exclusion of
   its proposal from the competitive range under request for proposals (RFP)
   No. W15P7T-04-R-A001, issued by the Department of the Army for various
   mobile electrical generators. DRS maintains that the agency misevaluated
   proposals and engaged in improper discussions.

   We deny the protest.

   The solicitation originally contemplated the award of up to three
   indefinite-delivery, indefinite-quantity contracts to design, build and
   furnish to the Army a new set of generators (variously sized and
   configured, and ranging from 5 to 60 kilowatts (kW)). Performance under
   the resulting contracts was to occur in three phases. During phase I, the
   contractors were to develop prototype generators, complete a maintenance
   demonstration, perform limited testing, and provide limited logistics
   data. At the conclusion of phase I, the solicitation and resulting
   contracts provided that the agency would perform a "downselect" among the
   phase I contractors and issue a delivery order to one of the contractors
   for performance of phases II and III. The protester and Onan Corporation
   received phase I contracts, and the phase II/III downselect is the subject
   of this protest.

   The firms' contracts, at clause H-13, set forth the procedures and
   evaluation criteria to be applied in the phase II/III downselect
   competition. That clause provides that the agency will award the phase II
   and III work to the contractor submitting the proposal deemed to offer the
   "best value" to the government, considering cost/price and the following
   non-cost/price factors (in descending order of importance): technical
   (with subfactors for key operational performance parameters--reliability,
   schedule, other key operational performance parameters, specific design
   characteristics, and design concept); integrated logistics support (ILS)
   (with subfactors for number of parts per generator family, other
   supportability analysis, logistics support, and maintenance planning); and
   small business participation plan. In order to receive consideration for
   award, a proposal had to be rated no less than acceptable for every factor
   and subfactor.

   When performance of phase I was sufficiently complete, the agency
   solicited proposals from DRS and Onan. After evaluating those proposals,
   the agency established a competitive range comprised of only Onan's
   proposal, and DRS filed a protest with our Office complaining that its
   proposal improperly had been excluded from the competitive range. In
   response, the agency advised that it would include DRS's proposal in the
   competitive range; we therefore dismissed DRS's protest. (B-295126.2,
   B-295126.3, Aug. 26, 2006). Thereafter, the agency issued a solicitation
   amendment that relaxed the specifications relating to the generators' fuel
   efficiency standards. DRS filed a protest objecting to the revised
   specifications. We denied that protest, finding that the relaxed
   specifications were unobjectionable and enhanced competition. See
   Engineered Elec. Co. d/b/a/ DRS Fermont, B-295126.4, June 14, 2007, 2007
   CPD para. 111.

   The agency then engaged in discussions with both firms, and evaluated the
   revised proposals as follows:

+------------------------------------------------------------------------------+
|      Factor      |            Subfactor             |   Onan    |    DRS     |
|------------------+----------------------------------+-----------+------------|
|    Technical     |                                  |   Good    |Unacceptable|
|------------------+----------------------------------+-----------+------------|
|                  |   Key Operational Performance    |Outstanding| Acceptable |
|                  |     Paramaters--Reliability      |           |            |
|------------------+----------------------------------+-----------+------------|
|                  |             Schedule             |Outstanding|Unacceptable|
|------------------+----------------------------------+-----------+------------|
|                  | Other Key Performance Parameters |Acceptable | Acceptable |
|------------------+----------------------------------+-----------+------------|
|                  | Specific Design Characteristics  |   Good    | Acceptable |
|------------------+----------------------------------+-----------+------------|
|                  |          Design Concept          |   Good    | Acceptable |
|------------------+----------------------------------+-----------+------------|
|       ILS        |                                  |   Good    |    Good    |
|------------------+----------------------------------+-----------+------------|
|                  |  Number of Parts Per Generator   |   Good    |    Good    |
|                  |              Family              |           |            |
|------------------+----------------------------------+-----------+------------|
|                  |  Other Supportability Analysis   |   Good    |    Good    |
|------------------+----------------------------------+-----------+------------|
|                  |        Logistics Support         |Outstanding|    Good    |
|------------------+----------------------------------+-----------+------------|
|                  |       Maintenance Planning       |   Good    | Acceptable |
|------------------+----------------------------------+-----------+------------|
|    Cost/Price    |                                  |$88,146,211|$88,487,822 |
|------------------+----------------------------------+-----------+------------|
|  Small Business  |                                  |Acceptable | Acceptable |
|Participation Plan|                                  |           |            |
+------------------------------------------------------------------------------+

   Agency Report (AR), exhs. 63, 64, at 2. On the basis of these evaluation
   results, the agency established a revised competitive range comprised of
   only Onan's proposal, and advised the protester that its proposal would
   not be further considered. After receiving a debriefing, DRS filed the
   current protest.

   DRS has raised numerous assertions, principally relating to the agency's
   technical evaluation and the adequacy of discussions. We have reviewed all
   of DRS's assertions and find them to be either without merit or not
   properly for our consideration. We discuss DRS's more significant
   arguments below.

   TECHNICAL EVALUATION

   DRS challenges the agency's technical evaluation and, in particular, the
   agency's conclusion that its proposal was technically unacceptable under
   the schedule subfactor of the technical factor. The central focus of DRS's
   numerous evaluation arguments is that the agency essentially applied a
   more stringent standard in evaluating DRS's proposal than it applied in
   evaluating Onan's. DRS maintains, for example, that its proposal was
   downgraded for offering a schedule that had overlapping testing and design
   activities, but that Onan's was not downgraded, even though Onan will have
   to conduct testing and design activities as well, and even though it did
   not propose a definitized schedule for those activities.

   In reviewing protests concerning the propriety of an agency's evaluation,
   it is not our role to reevaluate proposals; rather, we will examine the
   record to determine whether the agency's evaluation conclusions were
   reasonable and consistent with the terms of the solicitation, as well as
   applicable procurement laws and regulations. L-3 Commc'n. Corp., BT Fuze
   Prods. Div., B-299227, B-299227.2, Mar. 14, 2007, 2007 CPD para.83 at 6.
   There is no basis for objecting to the evaluation here. The record shows
   that there was a significant difference in the firms' success during phase
   I, and that this had a direct impact on both the proposal submission
   process and the firms' respective strategies for meeting the requirements
   of phase II.

   With respect to Onan, the record shows that their generator sets are based
   on a relatively mature design concept, that the firm submitted detailed
   information relating to the predicted reliability of their generator sets,
   and that their generator sets performed successfully during the
   overwhelming majority of the required testing, with results that were
   consistent with the firm's reliability predictions. In this regard, the
   firms were required to calculate reliability predictions for their
   generator sets on the basis of the components included in the generators,
   and those estimates had to be greater than 750 hours mean time between
   effective function failure (MTBEFF). Onan's calculations showed estimates
   that exceeded the 750 hour MTBEFF requirement for all generator sets. AR,
   exh. 58, at 2. Onan's generator sets then performed during actual testing
   in a manner consistent with the reliability predictions; each of Onan's
   generator sets completed 800 hours of reliability maturation testing
   without major system or component failures; any failures were related to
   peripheral subsystems or components, such as muffler brackets and fuel
   level sensors. Id. Onan's generator sets also exhibited no degradation in
   performance when subjected to an array of electrical performance tests
   before and after the reliability maturation testing.

   Further, Onan's generator sets met the overwhelming majority of other
   performance criteria outlined in the specifications, including overall
   generator set dimensions, environmental operation at extremes, noise
   suppression, transportability, maintainability, and winterization, with
   only minor deficiencies (for example, one generator set did not meet the
   specifications for noise suppression and two did not meet the weight
   requirements). AR, exh. 58, at 8-9, 11-14. Where the generator sets did
   not meet the specifications, Onan presented the agency with a detailed
   corrective action plan to address those matters. Id. Finally, Onan
   presented a workable, linear schedule that included phase I retesting to
   the limited extent that that would be required, a period devoted to
   resolving any deficiencies through redesign efforts, and a feasible
   interval for fabrication of the phase II pre-production models, without
   any overlap in activities that might jeopardize the overall schedule. AR,
   exh. 58, at 5-7.

   In contrast, the record shows that the generator set prototypes built by
   DRS during phase I were beset with difficulties, apparently due to DRS's
   design concept, which would have required significant design modifications
   to address significant phase I test failures. AR, exh. 53, at 25-26. In
   particular, the record shows that, like Onan, DRS presented the agency
   with calculations showing predicted reliability estimates that exceeded
   the 750 hour MTBEFF requirement for all generator sets. However, during
   testing, three of DRS's five generator sets failed to meet the
   specification's reliability maturation testing requirements and
   experienced six catastrophic failures of major system components or
   subsystems. Id. at 2-3. Notably, DRS's 15, 30 and 60 kW generator sets
   experienced alternator failures, and its 30 and 60 kW generator sets also
   experienced inverter failures prior to completing 400 hours of the 800
   hour reliability maturation test. Id. As a consequence, while DRS was able
   to demonstrate the electrical performance of its smaller generator sets
   (the 5 and 10 kW sets), before and after performance of the reliability
   maturation testing, it was unable to demonstrate the electrical
   performance of the three larger generator sets that had experienced
   catastrophic failure. Id. Because of these failures, the agency concluded
   that DRS's design was not as mature after completion of phase I as it
   should be and, accordingly, that this would require the government to
   assume the risk that the DRS generator sets would not be able to meet the
   reliability maturation test requirement during phase II. Id.

   The record also shows that the DRS generator sets failed a host of other
   testing requirements. For example, DRS did not provide complete data on
   the power quality at full set load rating for two of DRS's generator sets
   (the 5 and 10 kW sets), and all of DRS's generator sets failed to comply
   with the specifications for power quality requirements relating to voltage
   and frequency performance in the areas of voltage waveform, deviation,
   harmonics and voltage transients at rated load and at low power factor
   load. AR, exh. 53, at 10-17. DRS proposed a corrective action plan to
   address these failures, but the plan involved reliance on a simulation of
   actual generator set performance for each generator set size, followed by
   validation through retesting. The agency therefore found that:

     The [o]fferor's approach is based entirely on a simulation process that
     the [o]fferor is still developing; none of the [p]hase I testing was
     acceptable and must be re-conducted in [p]hase II. This requires that
     the [g]overnment assume the very high performance risk based on the
     [o]fferor's results of post-[p]hase I simulation rather than on [p]hase
     I test data.

   AR, exh. 53, at 15. Ultimately, in assessing the feasibility of DRS's
   proposed phase II approach, the agency concluded:

     The SOW [statement of work] requires that the [o]fferor confirm the
     design approach and supply the [g]overnment with test data at the end of
     [p]hase I, allowing the [g]overnment to assess [the] maturity of the
     design prior to initiating [p]hase II of the program. Essentially, the
     [o]fferor is in the process of confirming design approaches, then
     assembling the hardware to conduct [p]hase I testing. This requires that
     the [g]overnment assume the risk of [p]hase II performance based upon
     limited electrical testing of the 60 kW prototype, leveraged onto the
     remaining sets . . . that have not been modified or tested. This
     approach represents initiation of a [p]hase I design, not a mature
     design that is capable of a [p]hase II pre-production effort

   AR, exh. 53, at 16.[1] In short, the agency concluded that, because of the
   numerous failures of the DRS generator sets during phase I, the firm would
   have to significantly reengineer its generator sets to make them compliant
   with the specifications, and then essentially perform the phase I testing
   regimen for a second time.

   In its protest, DRS has largely ignored the agency's findings; DRS has not
   argued or otherwise demonstrated that the agency's evaluation conclusions
   with respect to the performance of its phase I prototype generator sets
   were incorrect or unreasonable, and the record clearly supports these
   conclusions.

   The agency evaluated DRS's proposed phase II schedule in light of these
   phase I failures. The agency assigned DRS's proposed schedule an
   unacceptable rating because it appeared unrealistic in light of the
   significant redesign and retesting requirements (essentially phase I
   activities), as well as all phase II activities, that would need to be
   performed within the time constraint of the phase II performance period.
   For example, the agency found:

     The [o]fferor's proposed [p]hase II schedule calls for completing four
     distinct activities in parallel in order to deliver the required 130
     pre-production generator sets 11 months after contract award. These
     activities include: modification of inverter and governor control
     software; retest of [p]hase I testing at the [o]fferor's facility and at
     Aberdeen Test Center (ATC); completion of technical drawing packages;
     and design, fabrication and burn-in testing of 130 pre-production
     generator sets. The [o]fferor's approach shows that the design and
     component purchases of [p]hase II generator sets is approximately 50
     [percent] complete prior to completing [p]hase I retest activities. For
     example, exhaust system components for [p]hase II generator sets are
     ordered and received prior to completing [p]hase I retest of noise
     performance. This approach presents the possibility that [p]hase II
     generator sets will not capture performance modifications necessary to
     comply with [p]hase I testing, or at a minimum, disrupt the [p]hase II
     schedule. The proposed schedule shows the development of drawings being
     completed prior to completion of [p]hase I retesting and after the start
     of the [p]hase II design and test phase of the program. The [o]fferor
     also proposes conducting environmental and rail impact tests at ATC on
     [p]hase I generator sets before they are upgraded with [p]hase II
     modifications.

   AR, exh. 53 at 5. Given the agency's unrefuted findings relating to the
   major failures of DRS's prototype generators during phase I, as well as
   the necessity for repeating many phase I activities, the agency's
   reservations about DRS's proposed phase II schedule--in particular, the
   resulting risk to the agency--were reasonable. In the final analysis,
   rather than demonstrating (as DRS contends) that the agency applied
   different standards in its evaluation of the two proposals, the record, in
   fact, shows that there was a wide disparity in the success of the firms'
   designs during phase I, and that the agency reasonably took this into
   account in its evaluation. We conclude that the agency reasonably assigned
   DRS's proposal an unacceptable rating under this subfactor.[2]

   DISCUSSIONS

   DRS maintains that the agency engaged in unequal discussions,
   specifically, that it was given more exacting questions and was required
   to provide far more detail in its responses than Onan. In effect, DRS is
   arguing that it was given a greater level of detail in its discussions
   than was given to Onan. We fail to see how providing more detailed
   discussions to DRS was improper or prejudicial to DRS. Discussions need
   not be identical; rather, discussions are to be tailored to each offeror's
   proposal. Federal Acquisition Regulation sect. 15.306(d)(1), (e)(1);
   PharmChem, Inc., B-291725.3 et al., July 22, 2003, 2003 CPD para. 148 at
   6. We find no impropriety here.

   DRS also asserts that its discussions were misleading. As noted, the
   agency relaxed the solicitation's requirements relating to the fuel
   efficiency standards for the generator sets. The agency advised both
   offerors of its intention to relax the specifications, and requested
   comments relating to the revisions, by e-mail dated October 18, 2006. AR,
   exh. 30. DRS commented by letter dated October 23, stating that, in its
   view, the changes were unnecessary because it could meet the original,
   more stringent, standards. AR, exh. 31. Notwithstanding DRS's position,
   the agency revised the specifications on November 1. AR, exh. 32.
   Thereafter, by letter of November 2, DRS requested that the Army engage in
   discussions relating to the deficiencies identified in its original phase
   II and III proposal. In response, the agency provided DRS with two rounds
   of discussion questions, first by letter dated November 3, and
   subsequently by letter dated January 16, 2007. In both letters, the agency
   provided DRS with detailed questions that had been developed by the
   evaluators after their review of DRS's initial proposal, including
   questions relating to DRS's ability to meet the original, more stringent,
   fuel efficiency standards.

   DRS maintains that these discussions were misleading because they required
   it to address the original, more stringent, fuel efficiency standards. DRS
   claims that it was prejudiced by the agency's actions because addressing
   the original standards required it to divert resources it could have used
   to address the relaxed standards. [3]

   Under our Bid Protest Regulations, protesters are required to file within
   10 days of when they know or should know of their basis for protest. 4
   C.F.R. sect. 21.2(a)(2) (2007). Here, as noted, the agency advised DRS of
   its intention to relax the specifications in October, and amended the
   specification in early November. On November 3, the agency provided DRS
   with the first round of discussion questions, which specifically required
   DRS to demonstrate its compliance with the original fuel efficiency
   standards. Upon receipt of these questions, DRS had all of the information
   necessary to assert that the discussions were misleading; DRS was fully
   aware that the questions related to the original standards rather than to
   the relaxed standards in the amended specifications. This being the case,
   this allegation of misleading discussions had to be raised within 10 days
   after November 3. Since DRS did not file its protest until well after that
   time, this aspect of the protest is untimely and will not be
   considered.[4]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The record shows that four of DRS's generator sets (the 5, 10, 30 and
   60 kW sets) also did not meet the specification requirements for noise.
   AR, exh. 53, at 17-23.

   [2] DRS also asserts that the agency improperly made a cost realism
   adjustment in its evaluated cost. Since we conclude that the agency
   reasonably found the firm's proposal technically unacceptable, and firms
   were required to achieve a technical rating of at least acceptable under
   all of the evaluation factors and subfactors in order to be considered for
   award under phase II, DRS's proposal was unacceptable regardless of cost.
   We thus need not consider this argument.

   [3] We note that the record appears to show that the agency discussed the
   earlier, more stringent fuel efficiency standards because of DRS's
   insistence, in its November 2 letter, that the agency afford it an
   opportunity to respond to the deficiencies identified in its initial phase
   II and III proposal and provide it an opportunity, essentially, to
   demonstrate its ability to meet the earlier, more stringent fuel
   efficiency standard. DRS wrote to the agency:

     DRS Fermont is also concerned that the Purchase Description was revised
     following discussions with its competitor. DRS Fermont believes that had
     the government conducted discussions with DRS so that DRS Fermont would
     have had an opportunity to clarify and explain certain aspects of its
     proposal, it is possible that different decisions could have been made
     regarding the Purchase Description. However, as the government has now
     changed the Purchase Description based only on discussions with DRS'
     competitor, DRS Fermont is concerned that the changes to the PD may
     result in advantage to its competitor.

   AR, exh. 33, at 2.

   [4] One aspect of DRS's misleading discussions argument is timely. DRS
   alleges that the agency misled it regarding its proposed sequence of
   testing during discussions. The record shows, however, that this aspect of
   DRS's proposed testing sequence was not central to the agency's criticism
   of DRS's schedule. Rather, as discussed, the agency's central concern was
   that DRS was proposing to progress to phase II with generator set
   configurations that had not passed major phase I testing requirements. AR,
   exh. 53, at 6. Thus, even if we agreed with DRS that discussions were
   misleading in this regard, it would have no effect on the decision to
   exclude DRS from further consideration because its schedule was
   unacceptable.