TITLE:  L-3 Communications Westwood Corporation, B-295126, January 19, 2005
BNUMBER:  B-295126
DATE:  January 19, 2005
**********************************************************************
   Decision

   Matter of:   L-3 Communications Westwood Corporation

   File:            B-295126

   Date:              January 19, 2005

   Michael A. Hordell, Esq., Charles H. Carpenter, Esq., and Laura L.
Hoffman, Esq., Pepper Hamilton, for the protester.

   Linda L. Shapiro, Esq., A. Ben Foster, Esq., and Mary Catherine Hodes,
Esq., Thompson Coburn, for Engineered Electric Company d/b/a/ Fermont; and
David T. Ralston, Esq., Philip A. Nacke, Esq., and Aaron C. Chatterjee,
Esq., Foley & Lardner, for Onan Corporation d/b/a/ Cummins Power
Generation, intervenors.

   Jeffrey I. Kessler, Esq., William Kampo, Esq., and Frank DiNicola, Esq.,
Department of the Army, 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

   Protest against agency's evaluation of protester's proposal is denied
where record shows allegations are without merit, or that alleged
evaluation errors did not result in competitive prejudice to protester. 

   DECISION

   L-3 Communications Westwood Corporation protests the award of contracts to
Engineered Electric Company d/b/a/ Fermont and Onan Corporation d/b/a/
Cummins Power Generation under request for proposals (RFP) No.
W15P7T-04-R-A001, issued by the Department of the Army to acquire
electrical generator sets.  L-3 argues that the agency misevaluated
proposals, failed to engage in meaningful discussions, and made an
unreasonable award decision.

   We deny the protest.

   BACKGROUND

   The RFP contemplated 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)).  The RFP contemplated performance in three phases. 
During phase I (to last approximately 13A months), the contractors will
develop prototype generators, complete a maintenance demonstration,
conduct limited testing, and provide limited logistics data; at the
conclusion of phase I, the Army will select one of the contractors to
continue performance of the remainder of the contract.  During phase II
(approximately 30 months), the contractor will engage in further
developmental and operational testing, perform a logistics demonstration,
and develop additional logistics data.  During phase III (approximately 38
months), the contractor will engage in production of the generators and
associated documentation (such as technical manuals).  Phases I and II are
to be performed on a cost-plus-fixed-fee basis, while phase III is to be
performed on a fixed-price basis. 

   The solicitation provided for the award of contracts to the firms
submitting proposals deemed to offer the "best value" to the government,
considering cost/price and non-cost/price factors as follows:  technical,
integrated logistics support (ILS) (equal in importance), performance risk
(slightly less important than the technical and ILS factors individually),
cost/price (slightly less important than performance risk), and small
business participation plan (slightly less important than cost/price). 
The subfactors for the technical factor (in descending order of
importance) were:  key operational performance parameters; specific design
characteristics; design concept; capabilities, plans, personnel and
facilities; and configuration management.    The subfactors for the ILS
factor (all equal in weight) were:  supportability analysis; logistics
support; maintenance planning; and technical publications.  For the
nona**cost/price considerations, the proposals were assigned adjectival
ratings of outstanding, good, acceptable, susceptible of being found
acceptable, or unacceptable, and, for the performance risk factor, low,
moderate or high risk.  (The cost/price evaluation is not at issue in the
protest.) 

   The Army received numerous proposals and, after establishing a competitive
range comprised of four proposals, engaged in discussions and solicited
and received final proposal revisions (FPR).  The agency evaluated the
FPRs and assigned the following ratings to the proposals:

+------------------------------------------------------------------------------+
|Factor     |Subfactor      |Onan       |Fermont     |L-3         |Offeror A   |
|-----------+---------------+-----------+------------+------------+------------|
|Technical  |A              |Good       |Outstanding |Acceptable  |Acceptable  |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Key Operational|Good       |Good        |Acceptable  |Acceptable  |
|           |Performance    |           |            |            |            |
|           |Parameters     |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Specific Design|Outstanding|Outstanding |Good        |Good        |
|           |Characteristics|           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Design Concept |Outstanding|Outstanding |Good        |Good        |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Capabilities,  |Good       |Outstanding |Good        |Good        |
|           |Plans,         |           |            |            |            |
|           |Personnel and  |           |            |            |            |
|           |Facilities     |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Configuration  |Acceptable |Acceptable  |Acceptable  |Acceptable  |
|           |Management and |           |            |            |            |
|           |Product        |           |            |            |            |
|           |Drawings       |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|ILS        |A              |Good       |Outstanding |Good        |Outstanding |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Supportability |Outstanding|Outstanding |Good        |Good        |
|           |Analysis       |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Logistics      |Good       |Outstanding |Good        |Outstanding |
|           |Support        |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Maintenance    |Good       |Outstanding |Good        |Outstanding |
|           |Planning       |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|A          |Technical      |Outstanding|Good        |Outstanding |Outstanding |
|           |Publications   |           |            |            |            |
|-----------+---------------+-----------+------------+------------+------------|
|Performance|A              |Low Risk   |Low Risk    |Moderate    |Low Risk    |
|Risk       |               |           |            |Risk        |            |
|-----------+---------------+-----------+------------+------------+------------|
|Cost/Price |A              |$89,347,161|$110,253,455|$103,727,169|$118,122,189|
|-----------+---------------+-----------+------------+------------+------------|
|Small      |A              |Good       |Outstanding |Outstanding |Acceptable  |
|Business   |               |           |            |            |            |
+------------------------------------------------------------------------------+

   Agency Report (AR), exh. 25, at 2.  On the basis of these evaluation
results, the agency made awards to Onan and Fermont, finding that those
two firms' proposals offered the best value to the government. 

   ABANDONED AND UNTIMELY ISSUES

   In its initial letter of protest, L-3 made a large number of assertions
relating to the agency's evaluation of its proposal.  In particular, L-3
alleged that the agency unreasonably failed to assign an additional 35
strengths to its proposal under the technical factor[1] and an additional
8 strengths under the ILS evaluation factor.[2]  The agency provided a
detailed report in response to the protest that specifically addressed
each of L-3's numerous arguments.  In its comments responding to the
report, L-3 makes no mention of either the overwhelming majority of its
initial assertions under the technical factor, or of any of its assertions
relating to the ILS factor.  Where, as here, an agency provides a detailed
response to a protester's assertions and the protester either does not
respond to the agency's position or provides a response that merely
references or restates the original allegation without substantively
rebutting the agency's position, we deem the initially-raised arguments
abandoned.  Citrus College; KEI Pearson, Inc., B-293543 et al., Apr. 9,
2004, 2004 CPD P 104 at 8 n.4.  Thus, except as specifically discussed
below, we find that L-3 has abandoned its assertions relating to the
agency's evaluation of its proposal under the technical and ILS factors.

   In a similar vein, L-3 initially argued that the agency evaluated the
performance risk under its and Fermont's proposals in a disparate manner. 
Specifically, L-3 asserted that the agency unreasonably assigned its
proposal a moderate risk rating because of performance problems occurring
under its prior generator contracts, while rating Fermont's proposal low
risk, notwithstanding that Fermont had experienced performance problems
under one of its prior contracts for generators.  (In support of its
allegation, L-3 asserted that the agency listed on a website some 24
problems associated with Fermont's 3 kW generators.)  The agency responded
to L-3's assertion, specifically noting that the problems under Fermont's
contract had been resolved without excessive government involvement, and
noting as well that the cognizant contracting official who completed the
past performance questionnaire assigned Fermont scores of at least
acceptable in every area.  (In contrast, the agency took the position in
its report that there had been a need for excessive government involvement
in resolving the performance problems under L-3's contracts, and that the
cognizant contracting officials had not given L-3 acceptable ratings on
its past performance questionnaires.) 

   In its comments responding to the agency's report, L-3 did no more than
restate its initial protest argument--that the agency unreasonably failed
to assign the Fermont proposal a moderate risk rating because of the
alleged 24 problems with Fermont's 3A kW generators.  L-3 neither mentions
nor rebuts the agency's position that the different ratings were warranted
because the problems with the Fermont contract were resolved without
excessive government involvement, and Fermont received at least acceptable
ratings for that contract's past performance questionnaire.  Given that
L-3 merely restated its initial protest argument without substantively
responding to the agency's position, we deem this aspect of L-3's protest
abandoned as well.  Citrus College; KEI Pearson, Inc., supra.

   In its comments responding to the agency report, L-3 asserted for the
first time that the agency had evaluated its and Onan's proposals in a
disparate manner, and also afforded Onan more detailed discussions than
those provided to L-3.  L-3 maintains that it could have improved its
proposal had it been given similarly detailed discussions, and that this
disparate treatment evidences bias on the part of the agency. 

   Our Bid Protest Regulations, 4 C.F.R. S 21.2(a)(2) (2004), require that
protests be filed within 10 days of when the protester knew or should have
known the basis for protest.  The agency filed its report responding to
the protest--which contained the information on which L-3's additional
arguments are based--on November 19, 2004.  L-3's comments responding to
the report (which included the new assertions) were not submitted until
December 3, that is, 14 days after the report was submitted.[3]  Since L-3
did not raise its new assertions within 10 days of its receipt of the
report, this aspect of the protest is untimely and will not be
considered.[4]

   EVALUATION OF THE L-3 TECHNICAL PROPOSAL

   L-3 asserts the agency misevaluated its proposal in several respects.  In
reviewing protests relating to the propriety of an agency's evaluation,
our Office does not reevaluate proposals; our review is limited to
considering whether the agency's evaluation is reasonable and consistent
with the solicitation's evaluation scheme, as well as applicable statutes
and regulations.  Joint Mgmt. & Tech. Servs., B-294229, Ba**294229.2,
Sept. 22, 2004, 2004 CPD P 208 at 4.  As discussed below, we find that the
evaluation here was unobjectionable.

   Digital Control System

   L-3 asserts that the agency unreasonably failed to assign its proposal
strengths under the key operational performance parameters and specific
design characteristics subfactors based on its proposed digital control
system (also referred to in the record as its computer interface
module-control system (CIM-CS)).  According to the protester, it offered
the only field-proven generator control system among the competitors and,
further, its CIM-CS offers superior performance in terms of survivability
against adverse environmental factors such as high humidity, salt, fog,
spray, and electromagnetic interference.

   The agency responds that, contrary to the protester's assertion, its
proposed CIM-CS is not field proven because the offered CIM-CS is a
substantially redesigned version of L-3's earlier computer interface
module (CIM); the agency maintains that, because of this significant
redesign, there was no basis to give evaluation weight to reliability
information relating to the earlier model.  The agency further notes that,
in fact, the L-3 proposal was assigned a minor strength under the specific
design characteristics subfactor for the quality of its response to the
solicitation's survivability requirements (that is, the generators'
ability to function in adverse environmental conditions). 

   We have no basis to object to the evaluation in this area.  As noted by
the Army, the record shows that L-3's CIM-CS is, in fact, a significantly
redesigned version of its earlier CIM.  The new version differs from the
older version in that:  [deleted].  AR, exh. 10, vol. II, Design Concept,
at 79-81.  L-3 maintains that these changes do not result in a
significantly different configuration for the CIMa**CS.  However, the
agency has sufficiently established that the changes are extensive enough
that it reasonably could discount reliability data associated with the
earlier CIM model and conclude that the currently-proposed CIMa**CS is not
field tested.

   The record also shows that the agency gave L-3's proposal two (minor)
strengths for meeting the RFP's survivability requirements.  In
particular, the agency's final evaluation materials provide:

   The proposal provides a thorough discussion about the material properties
required to allow the set to operate in environments with extreme
Humidity.  This information enhances the merit of the proposal and
increases the probability of successful performance of the contract.

   . . . .

   The proposal addressed all of the survivability requirements in great
detail.  The proposal described the design approach the offeror is using
to meet the requirements.  The discussion was very detailed and this
information enhances the merit of the proposal and increases the
probability of successful performance of the contract . . . .

   AR, exh. 23, Appendix A, at 95-96.  While the protester essentially
disagrees with the weight that this favorable finding was given in the
technical evaluation--that is, it believes its proposal should have
received major, rather than minor, strengths for its CIMa**CS
component--such disagreement, without more, does not provide a basis for
our Office to object to the agency's evaluation.  Kathryn Huddleston &
Assocs., Ltd., B-294035, July 30, 2004, 2004 CPD P142 at 2.  We conclude
that the evaluation in this area was reasonable. 

   Generator Weight

   L-3 asserts that the agency unreasonably failed to credit its proposal
with a strength for proposing generators that were lighter than the
RFP-specified required weights, and also unreasonably penalized its
proposal for not meeting objective weights (lower than the required
weights, but objectives of the agency).  In this latter regard, L-3
asserts that, since the objective weights were not specified in the RFP,
penalizing it for failing to meet those weights was tantamount to applying
an unstated requirement. 

   This aspect of L-3's protest is without merit.  As for the required
weights, the record shows that the evaluators did not credit L-3's
proposal with a strength because the firm's proposed generators were
[deleted]; the agency nonetheless did specifically note that the proposed
generators were [deleted] the required weights.  AR, exh. 23, Appendix A,
atA 89.  The source selection plan defines a major strength as an aspect
of a proposal that appreciably enhances the merit of the proposal, AR,
exh. 4, revision 3, at 26; the agency could reasonably conclude that this
relatively minor advantage did not warrant being rated a strength.  As for
the objective weights, there is no indication in the record that L-3's
proposal was penalized for failing to meet those weights; there is no
mention in the evaluation materials of L-3's failing to meet the objective
weights. [5]  Accordingly, we find that this aspect of the evaluation was
unobjectionable.

   [deleted]

   L-3 asserts that the agency improperly failed to assign a strength to its
proposal for offering [deleted] generator models.  According to the
protester, only the [deleted] will meet all of the other requirements (in
terms of weight, size, noise levels, reliability and paralleling) of the
RFP for [deleted] generators.  L-3 also asserts that the agency
unreasonably failed to assign a strength to its proposal for offering an
[deleted], a component that allows power to be delivered by the generators
during times when short circuits occur.  L-3 maintains that the [deleted]
exceeds the requirements of the RFP because it can deliver short circuit
current for [deleted] and, in the [deleted] models, provides redundancy
and increased reliability because the [deleted] can deliver power when
there is a failure of the [deleted].

   The agency responds that, with respect to L-3's proposed [deleted], there
was no basis to assign a strength to the proposal merely because the
proposed generators meet the requirements of the solicitation, and L-3's
use of the [deleted] is simply one method of meeting the RFP's
requirements for short circuit current availability.  As for the ability
of the [deleted] to [deleted] the agency states that this was not a
requirement of the RFP, and does not provide a benefit to the agency in
any case because it does not use [deleted], and therefore does not need to
have a [deleted].  Finally, the agency states that it did not assess the
reliability of individual system components (such as the [deleted]) in the
evaluation but, rather, evaluated the overall reliability of the
generators; it properly did not assign an individual strength to the L-3
proposal based on the allegedly enhanced reliability of the generators
solely because they incorporate the [deleted].

   The evaluation in this area was unobjectionable.  As the protester
concedes, the proposed [deleted] simply meet all of the requirements of
the RFP for generators of that size; there thus is no basis to find that
the agency was unreasonable in not assigning a strength to the L-3
proposal based on the [deleted].  Similarly, there is no basis to find
unreasonable the agency's failure to assign a strength to the L-3 proposal
for offering the [deleted] on its generators; all generators were required
to include a method for providing current during short circuits, and the
[deleted] is simply one method for meeting that requirement.  Moreover,
the capability of the L-3 generators' [deleted] to provide short circuit
current for purposes of [deleted]was not required by the RFP, and since
the agency does otherwise require this feature, there was no basis to
assign the proposal a strength.  Finally, there was nothing in the
solicitation to indicate that the agency would evaluate the reliability of
individual system components, and the protester has neither alleged nor
shown that the agency otherwise failed to reasonably evaluate its proposed
generator systems' reliability.

   Performance Risk

   L-3 asserts that the agency improperly assigned the firm's proposal a
moderate performance risk rating and unreasonably failed to elicit
information during discussions that could have resulted in its proposal
receiving a low risk rating.  According to the protester, the agency
relied on incorrect information relating to the firm's performance of
prior generator contracts to find that its proposal represented a moderate
performance risk.  L-3 also maintains that, in assigning L-3 a moderate
risk rating, the agency improperly penalized it for failing to provide
information relating to the identity of one of its subcontractors;
according to L-3, this information was neither required by the RFP, nor
elicited during discussions. 

   We need not resolve these arguments, since the record establishes that
there was no prejudice to L-3 arising from the alleged errors.  In this
connection, prejudice is an essential element of every viable protest, and
where none is shown or is otherwise evident, we will  not sustain a
protest, even where the agency's actions may arguably have been improper. 
Joint Mgmt. and Tech. Servs., supra, at 7. 

   Even if we assume that L-3's proposal should have been assigned a low
performance risk rating, there is no basis to conclude that the firm would
have been in line for award ahead of either of the two awardees.  Onan's
proposal was rated superior to La**3's under the technical factor (good
versus acceptable) and equal under the ILS factor.  Although L-3's
proposal was rated superior to Onan's under the small business
participation factor (outstanding versus good), since that was the least
important factor and Onan's cost/price was significantly lower, there is
no reason to believe that there is a reasonable possibility that the
agency would have selected La**3's proposal for award, even with a low
performance risk rating.  As for Fermont, although its proposed cost/price
was slightly higher than L-3's, its proposal was rated superior to La**3's
under the two most important factors--technical (outstanding versus
acceptable) and ILS (outstanding versus good)--and was rated equal under
the small business participation factor.  We conclude that there is no
reasonable possibility that the agency would have made award to L-3
instead of Fermont, even if it had received a low performance risk
rating. 

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Specifically, L-3 alleged that the agency unreasonably failed to
assign 9 strengths under the key operational performance parameters
subfactor, 5 strengths under the specific design characteristics
subfactor, 18 strengths under the design concept subfactor, 6 strengths
under the capabilities, plans, personnel and facilities subfactor, and 3
strengths under the configuration management and product drawings
subfactor.

   [2] Specifically, L-3 alleged that the agency unreasonably failed to
assign three strengths under the supportability analysis subfactor, three
strengths under the logistics subfactor, and two strengths under the
technical publications subfactor.

   [3] During the development of the protest record, our Office granted an
extension for the submission of comments responding to the report due to
misdelivery of a portion of Onan's copy of the report to counsel for L-3. 
In granting this extension, we specifically advised protester's counsel
that the extension of time for submitting comments did not extend the
deadline for filing any supplemental bases for protest. 

   [4] In an unsolicited letter submitted after the parties tendered their
comments responding to a supplemental report filed by the agency, L-3
suggests that these supplemental assertions are timely because they are
simply additional examples of its original assertion that the agency
engaged in disparate treatment of the offerors.  We disagree.  L-3's
initial protest made no mention of the agency's evaluation of the Onan
proposal, or of the allegedly disparate conduct of discussions; these
assertions appear for the first time in L-3's comments which, as noted,
were filed 14 days after the agency provided L-3 its report.  (L-3 did
allege disparate evaluation of its proposal as compared to the evaluation
of Fermont's proposal for performance risk; as noted above, however, L-3
abandoned that assertion.)  A general allegation in an initial protest
does not render timely subsequently identified specific examples of the
general allegation.  Dismas Charities, Inc., B-289575.2, B-289575.3, Feb.
20, 2004, 2004A CPD P 66 at 3.   

   [5] We note that L-3 is incorrect in its assertion that the RFP did not
specify the objective weights.  See RFP at 227; amend. No. 1, at 154;
amend. No. 3, at 4.